No.

B329873

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,
v.
PAUL RUBEN FLORES,
Defendant and Appellant.

Monterey County Superior Court, Case No. 22CR003712

The Honorable Jennifer O'Keefe, Judge

RESPONDENT’S BRIEF

ROB BONTA (SBN 202668)

Attorney General of California
LANCE E. WINTERS (SBN 162357)
Chief Assistant Attorney General
SUSAN SULLIVAN PITHEY (SBN 180166)
Senior Assistant Attorney General
ZEE RODRIGUEZ (SBN 204357)
Supervising Deputy Attorney General
*MICHAEL C. KELLER (SBN 168908)
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013-1230
Telephone: (213) 269-6087
Fax: (916) 731-2143
Email: [email protected]
Attorneys for Plaintiff and Respondent

April 14, 2025

 TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................... 16
STATEMENT OF THE CASE ..................................................... 19
STATEMENT OF FACTS ............................................................ 20
A. Prosecution evidence .................................................... 20
1. Appellant showed that he was romantically
interested in Smart, but she had no interest in
him ......................................................................... 20
2. On the night Smart disappeared, appellant
continued to show interest in her, and he was
the last person seen with her prior to the
disappearance ....................................................... 22
3. Appellant was seen with a black eye shortly
after Smart went missing, and he acted
strangely when asked by others about his eye
or Smart’s disappearance ..................................... 27
4. Upon being interviewed by the police,
appellant lied about his romantic interest in
Smart, the amount of contact he had with her
at the party, and the cause of his black eye ........ 29
5. During the summer of 1996, appellant called
Smart a “dick tease,” and he admitted to
having buried her underground ........................... 32
6. Four dogs, which had been trained and
certified in locating human remains,
separately searched the Santa Lucia dorm and
passed numerous rooms before alerting their
respective handlers that someone had died in
appellant’s room .................................................... 34
7. Appellant and his father kept people away
from the deck on White Court .............................. 37

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8. Appellant failed to respond when his mother

suggested that he might not be able to “punch
holes” in a podcaster’s accusation that he was
responsible for Smart’s disappearance ................ 38
9. In 2021, two dogs, which had been certified in
finding human remains, detected the presence
of remains under the deck of the Flores home .... 39
10. Ground penetrating radar showed that an
area under the Flores deck had been dug by
hand with dimensions that were consistent
with a human grave .............................................. 40
11. Under the deck, at a depth of about four feet,
the soil contained some blood as well as some
fibers, both cotton and synthetic .......................... 42
12. A few months after the search of the ground
under the deck, Ruben admitted having
committed a felony ................................................ 44
13. Uncharged crimes -- appellant raped two
women after giving them a roofie or another
drug to render them unconscious ......................... 45
a. Appellant raped R.D. in 2008 ....................... 45
b. Appellant raped S.D. in 2011 ....................... 46
B. Defense evidence ........................................................... 47
C. Rebuttal ......................................................................... 49
ARGUMENT ................................................................................. 49
I. Substantial evidence supports the trial court’s finding
that Juror No. 273 had not lost her ability to remain
neutral ................................................................................... 49
A. Factual background ...................................................... 50

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B. A trial court’s denial of a request to discharge a

sitting juror will be upheld if supported by
substantial evidence ..................................................... 54
C. Substantial evidence supported the trial court’s
finding that Juror No. 273 could be fair and
impartial ........................................................................ 58
II. The uncharged rapes were admissible under Evidence
Code section 1108 because the charging document
alleged that appellant killed Smart during the
commission of a rape or attempted rape, each of which
constituted a qualifying sexual offense under the
statute .................................................................................... 61
A. Factual background ...................................................... 62
B. Evidence Code section 1108 applies to every
criminal action in which a defendant is “accused” of
a sexual offense ............................................................. 63
C. The trial court did not abuse its discretion by
admitting the uncharged sex crimes under
Evidence Code section 1108 ......................................... 65
D. Any error in admitting the testimony was harmless .. 71
III. Appellant forfeited his meritless claim that Boelter,
who had previously been roofied, should have been
precluded from opining that Smart acted as though she
may have been roofied .......................................................... 76
A. Factual background ...................................................... 77
B. Appellant forfeited his challenge to the admission
of Boelter’s opinion by failing to raise a timely
objection when Boelter first testified that Smart
may have been under the influence of a drug ............. 79
C. The court did not abuse its discretion by allowing
Boelter to opine that Smart acted as if she had
been roofied ................................................................... 80

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D. Boelter’s testimony concerning the school

newspaper did not violate the hearsay rule because
it was not offered to prove the truth ............................ 82
E. Any error in admitting Boelter’s testimony was
harmless ........................................................................ 83
IV. The prosecutor did not ask the jury to draw any
improper inference from the still photograph of the
unidentified woman who had her eyes closed with a ball
gag in her mouth, and any prosecutorial error was
harmless ................................................................................ 84
A. Factual background ...................................................... 85
B. The prosecutor did not commit misconduct or
otherwise err during closing argument by asserting
that the girl in the photo did not appear to be
having fun ..................................................................... 88
C. Any improper argument was harmless ....................... 90
V. Substantial evidence supports the jury’s finding of
murder in the first degree .................................................... 91
VI. The trial court properly instructed the jury as to the
mental state required for attempted rape of an
intoxicated person, and it properly instructed the jury
on its ability to consider evidence of appellant’s
intoxication ............................................................................ 94
A. Factual background ...................................................... 95
B. Appellant is precluded from raising his meritless
claim that the instructions allowed the jury to find
that he attempted to rape an intoxicated person
without finding that he attempted to have
intercourse with a person incapacitated by
intoxication .................................................................... 96

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C. Appellant forfeited his meritless claim concerning

the scope of the pinpoint instruction on his
voluntary intoxication ................................................ 100
D. Any instructional error was harmless ....................... 102
VII. The cumulative error argument lacks merit ..................... 103
CONCLUSION ............................................................................ 104

6
 TABLE OF AUTHORITIES

Page

CASES

Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450 ................................................................. 56

Chapman v. California
(1967) 386 U.S. 18 ..................................................................... 98

Delaware v. Van Arsdall

(1986) 475 U.S. 673 ................................................................... 99

In re Hamilton
(1999) 20 Cal.4th 273 ................................................................ 50

In re Martin
(1987) 44 Cal.3d 1 ..................................................................... 71

People v. Alexander
(2010) 49 Cal.4th 846 ................................................................ 75

People v. Allen and Johnson

(2011) 53 Cal.4th 60 ...................................................... 50, 52, 54

People v. Avila
(2014) 59 Cal.4th 496 .................................................... 60, 62, 63

People v. Bailey
(2012) 54 Cal.4th 740 ................................................................ 93

People v. Balcom
(1994) 7 Cal.4th 414 .................................................................. 66

People v. Beeler
(1995) 9 Cal.4th 953 ...................................................... 51, 52, 54

People v. Beltran
(2013) 56 Cal.4th 935 ................................................................ 98

People v. Benson
(1990) 52 Cal.3d 754 ................................................................. 85

7
 TABLE OF AUTHORITIES
(continued)
Page

People v. Berg
(2018) 23 Cal.App.5th 959 ........................................................ 96

People v. Bolden
(1996) 44 Cal.App.4th 707 .................................................. 78, 79

People v. Bolden
(2002) 29 Cal.4th 515 ................................................................ 97

People v. Bradley
(2012) 208 Cal.App.4th 64 ........................................................ 77

People v. Braslaw
(2015) 233 Cal.App.4th 1239 .................................................... 93

People v. Britt
(2002) 104 Cal.App.4th 500 ................................................ 62, 66

People v. Brooks
(2017) 3 Cal.5th 1 ...................................................................... 50

People v. Centeno
(2014) 60 Cal.4th 659 .................................................... 84, 85, 86

People v. Chhoun
(2021) 11 Cal.5th 1 .................................................................... 61

People v. Chism
(2014) 58 Cal.4th 1266 .............................................................. 98

People v. Cleveland
(2001) 25 Cal.4th 466 .......................................................... 50, 51

People v. Cortez
(2016) 63 Cal.4th 101 .......................................................... 85, 86

People v. Cunningham
(2001) 25 Cal.4th 926 ................................................................ 85

8
 TABLE OF AUTHORITIES
(continued)
Page

People v. Dalton
(2019) 7 Cal.5th 166 .................................................................. 64

People v. Daniels
(1991) 52 Cal.3d 815 ................................................................. 53

People v. Daveggio and Michaud

(2018) 4 Cal.5th 790 ...................................................... 61, 63, 64

People v. Davis
(2005) 36 Cal.4th 510 ................................................................ 78

People v. Delgado
(2013) 56 Cal.4th 480 ................................................................ 72

People v. Demetrulias
(2006) 39 Cal.4th 1 .................................................................... 75

People v. Dillon
(2009) 174 Cal.App.4th 1367 .................................................... 96

People v. Doolin
(2009) 45 Cal.4th 390 ................................................................ 61

People v. Ewoldt
(1994) 7 Cal.4th 380 .................................................................. 66

People v. Falsetta
(1999) 21 Cal.4th 903 ................................................................ 67

People v. Fontenot
(2019) 8 Cal.5th 57 .................................................................... 93

People v. Franklin
(1976) 56 Cal.App.3d 18 ........................................................... 52

People v. Goldberg
(1984) 161 Cal.App.3d 170 ....................................................... 52

9
 TABLE OF AUTHORITIES
(continued)
Page

People v. Guiton
(1993) 4 Cal.4th 1116 ................................................................ 89

People v. Gutierrez
(2009) 45 Cal.4th 789 ................................................................ 79

People v. Harris
(1998) 60 Cal.App.4th 727 ........................................................ 67

People v. Harris
(2008) 43 Cal.4th 1269 .............................................................. 56

People v. Hines
(1997) 15 Cal.4th 997 ................................................................ 99

People v. Holloway
(2004) 33 Cal.4th 96 ............................................................ 53, 55

People v. Houston
(2005) 130 Cal.App.4th 279 ...................................................... 71

People v. Hoyt
(2020) 8 Cal.5th 892 .................................................................. 84

People v. Jackson
(2016) 1 Cal.5th 269 ............................................................ 93, 96

People v. Jones
(2020) 50 Cal.App.5th 694 ........................................................ 51

People v. Kaurish
(1990) 52 Cal.3d 648 ........................................................... 52, 55

People v. Kipp
(1998) 18 Cal.4th 349 ................................................................ 52

People v. Lamas
(2007) 42 Cal.4th 516 ................................................................ 98

10
 TABLE OF AUTHORITIES
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People v. Lang
(1989) 49 Cal.3d 991 ................................................................. 85

People v. Lara
(2017) 9 Cal.App.5th 296 .......................................................... 88

People v. Leahy
(1994) 8 Cal.4th 587 .................................................................. 76

People v. Ledesma
(2006) 39 Cal.4th 641 ................................................................ 52

People v. Lewis
(2009) 46 Cal.4th 1255 ........................................................ 60, 92

People v. Lopez
(2018) 5 Cal.5th 339 ...................................................... 50, 51, 54

People v. Manibusan
(2013) 58 Cal.4th 40 .................................................................. 88

People v. Mathson
(2012) 210 Cal.App.4th 1297 .................................................... 93

People v. McGehee
(2016) 246 Cal.App.4th 1190 .................................................... 98

People v. Merriman
(2014) 60 Cal.4th 1 .................................................................... 60

People v. Mickel
(2016) 2 Cal.5th 181 ............................................................ 51, 56

People v. Miles
(2020) 9 Cal.5th 513 .................................................................. 60

People v. Mincey
(1992) 2 Cal.4th 408 .................................................................. 99

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 TABLE OF AUTHORITIES
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Page

People v. Mora
(2018) 5 Cal.5th 442 .................................................................. 53

People v. Mullens
(2004) 119 Cal.App.4th 648 ...................................................... 67

People v. Navarette
(2003) 30 Cal.4th 458 ................................................................ 76

People v. Pearson
(2012) 53 Cal.4th 306 ................................................................ 98

People v. Pensinger
(1991) 52 Cal.3d 1210 ............................................................... 85

People v. Peoples
(2016) 62 Cal.4th 718 ................................................................ 85

People v. Pierce
(2002) 104 Cal.App.4th 893 ...................................................... 61

People v. Partee
(2020) 8 Cal.5th 860 .................................................................. 70

People v. Partida
(2005) 37 Cal.4th 428 ................................................................ 79

People v. Romero
(2017) 14 Cal.App.5th 774 ........................................................ 56

People v. Saille
(1991) 54 Cal.3d 1103 ............................................................... 97

People v. Samaniego
(2009) 172 Cal.App.4th 1148 .................................................... 93

People v. Sanchez
(2016) 63 Cal.4th 665 ................................................................ 79

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 TABLE OF AUTHORITIES
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Page

People v. Sandoval
(2015) 62 Cal.4th 394 ................................................................ 89

People v. Seumanu
(2015) 61 Cal.4th 1293 .............................................................. 87

People v. Shorts
(2017) 9 Cal.App.5th 350 .......................................................... 79

People v. Simon
(2016) 1 Cal.5th 98 .................................................................... 93

People v. Solomon
(2010) 49 Cal.4th 792 ................................................................ 88

People v. Stewart
(2004) 33 Cal.4th 425 ................................................................ 53

People v. Story
(2009) 45 Cal.4th 1282 ............................................ 60, 61, 63, 88

People v. Suazo
(2023) 95 Cal.App.5th 681 .................................................. 96, 97

People v. Suff
(2014) 58 Cal.4th 1013 ........................................................ 75, 76

People v. Tafoya
(2007) 42 Cal.4th 147 ................................................................ 85

People v. Thornton
(2007) 41 Cal.4th 391 ................................................................ 85

People v. Veale
(2008) 160 Cal.App.4th 40 ........................................................ 88

People v. Virgil
(2011) 51 Cal.4th 1210 .............................................................. 77

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 TABLE OF AUTHORITIES
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People v. Walker
(1995) 31 Cal.App.4th 432 ........................................................ 71

People v. Walker
(2002) 29 Cal.4th 577 .......................................................... 63, 71

People v. Wallace
(2008) 44 Cal.4th 1032 .............................................................. 87

People v. Watson
(1956) 46 Cal.2d 818 .......................................................... passim

People v. Williams
(1988) 44 Cal.3d 883 ................................................................. 76

People v. Williams
(1997) 16 Cal.4th 635 ................................................................ 97

People v. Wrest
(1992) 3 Cal.4th 1088 ................................................................ 99

People v. York
(1992) 11 Cal.App.4th 1506 ...................................................... 70

People v. Zapien
(1993) 4 Cal.4th 929 .................................................................. 75

People v. Zemek
(2023) 93 Cal.App.5th 313 ........................................................ 53

People vs. Nelson (2011) 51 Cal.4th 198 ....................................... 80

STATUTES

Cal. Pen. Code § 29.4 ............................................................... 96, 97

Cal. Pen. Code § 32 .................................................................. 15, 70

Cal. Pen. Code § 187 ................................................................ 15, 88

Cal. Pen. Code § 189 .......................................................... 15, 64, 89

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Cal. Pen. Code § 261 ...................................................................... 64

Cal. Pen. Code § 1089 .................................................................... 50

Evid. Code § 352 ...................................................................... passim

Evid. Code § 800 ....................................................................... 76, 79

Evid. Code § 1101 ............................................................... 58, 59, 66

Evid. Code § 1108 .................................................................... passim

Evid. Code § 1200 ..................................................................... 78, 79

CONSTITUTIONAL PROVISIONS

U.S. Const., 14th Amend. ........................................................ 84, 85

OTHER AUTHORITIES

CALCRIM No. 222 ......................................................................... 87

CALCRIM No. 303 ......................................................................... 87

CALCRIM No. 460 .................................................................. passim

CALCRIM No. 625 ............................................................. 90, 92, 97

CALCRIM No. 1000 ................................................................. 91, 94

CALCRIM No. 1002 ..................................................... 90, 91, 94, 95

CALCRIM No. 1003 ................................................................. 91, 94

CALCRIM No. 1191A .................................................................... 89

15
 INTRODUCTION
Appellant killed Kristin Smart, who was a freshman
classmate of his at Cal Poly San Luis Obispo, during the
commission of a rape or attempted rape. Having previously
displayed a romantic interest in Smart that was not reciprocated,
he did so yet again at an off-campus party on May 24, 1996. That
night, appellant made unwanted sexual advances on two other
female students before returning to Smart. After appellant spent
some time in Smart’s presence, she became so heavily intoxicated
from alcohol and/or Rohypnol (“roofie”) 1 that she ended up on the
ground in a semiconscious state. Although Timothy Davis and
Cheryl Anderson had already started to help Smart get back to
her dorm, appellant inserted himself into the group and then took
over the role of helping Smart to walk after Davis turned toward
his dorm. At that point, appellant repeatedly attempted to
isolate Smart by stopping on two occasions to engage in some
physical contact with her—once to rub her arms and the other to
give her a hug—while encouraging Anderson to continue walking
without them. When Anderson eventually separated from them
to go to her dorm, she declined appellant’s requests for a kiss and
a hug. But Anderson secured a promise from appellant to get
Smart safely back to her dorm, which was only about 400 feet
away from appellant’s dorm. Despite appellant’s promise, Smart
never made it back to her dorm, and she was never seen again.

1 Like the witnesses in this case, respondent will refer to

Rohypnol by its slang term, roofie. Because the drug is a powerful
sedative that produces a hypnotic effect, it is commonly referred to as a
“date rape” drug.

16
 An investigation showed that appellant killed Smart in his
dorm room, that he buried her body under a deck outside his
family home, and that he moved the body years later just after
detectives completed a search of the inside of that home. Four
dogs that had been trained in locating human remains separately
searched appellant’s dorm building about one month after Smart
vanished, and each dog passed numerous rooms before alerting
their respective handlers that someone had died in appellant’s
room. Two different dogs that had been trained in locating
human remains separately searched the yard of appellant’s
family home before indicating that the targeted odor existed
under the deck. Likewise, ground penetrating radar showed an
anomaly under the deck that did not exist in the same size and
depth elsewhere in the yard. At that point, an archaeologist
excavated the area under the deck. The area had jumbled soil
that suggested it had been dug by hand on two occasions, a size
that was consistent with a human grave, darkly stained soil that
tested positive for hemoglobin (which is found in the blood of
humans), and fibers that were consistent with the red and black
clothing Smart wore the night of her disappearance.
Appellant’s words and conduct further showed that he killed
Smart during the commission of a rape or attempted rape.
Following Smart’s disappearance, appellant gave conflicting
explanations as to the source of a black eye that he obtained
around the time of Smart’s disappearance, he acted strangely
whenever he was asked about Smart, and he kept his girlfriend
away from the deck where Smart was very likely buried at the

17
time. More importantly, appellant admitted being responsible for
Smart’s death on two occasions. First, appellant told a girl that
he had buried Smart because she was a “dick tease.” Second,
appellant failed to respond during a recorded telephone
conversation when his mother suggested that he might not be
able to “punch holes” in a podcaster’s accusation that he was
responsible for Smart’s disappearance.
Finally, although uncharged in this case, appellant
surreptitiously drugged and then raped two women, R.D. and
S.D., who were incapable of resisting because they were either
unconscious or semiconscious throughout the sexual attacks. 2
Combined with the other evidence, their testimony left no doubt
that appellant killed Smart during a rape or attempted rape.
Convicted by a jury of first degree murder, appellant raises
seven meritless claims. First, appellant’s challenge to the trial
court’s refusal to discharge a sitting juror lacks merit because
substantial evidence supports the court’s finding that the juror
could be fair and impartial. Second, appellant’s challenge to the
admissibility of the uncharged rapes lacks merit because they
were admissible under Evidence Code section 1108, which applies
to every criminal action in which a defendant is accused of a
sexual offense. Third, appellant forfeited his meritless claim that
a witness, who had previously been roofied, should have been
precluded from opining that Smart acted as though she may have
been roofied. Fourth, appellant’s claim of prosecutorial

2 The trial record refers to each of the uncharged sexual assault

victims by first name, using “Doe” as the last name.

18
misconduct lacks merit because the prosecutor did not ask the
jury to draw any improper or unreasonable inference from a
photograph that was admitted at trial. Fifth, appellant’s
challenge to the first degree murder finding lacks merit because
the verdict is supported by substantial evidence. Sixth,
appellant’s claims of instructional error are forfeited and lack
merit because appellant did not object when the court gave the
standardized instruction for attempted crimes and because the
court gave the standardized instruction on voluntary intoxication
in the exact language that appellant proposed. Seventh,
appellant’s cumulative prejudice argument lacks merit because
he fails to establish even one error and because he suffered no
prejudice from any errors, whether considered individually or
cumulatively.

STATEMENT OF THE CASE

The San Luis Obispo County District Attorney charged
appellant with murder (Pen. Code, § 187, subd. (a)) 3 with an
allegation that the murder occurred during the commission or
attempted commission of rape (§ 189, subd. (a)). (1CT 126-127;
10CT 2867-2869.) After appellant successfully moved for a
change of venue, the case was transferred to Monterey County,
where a jury found him guilty of first degree murder. 4 (22CT

3 Unless otherwise specified, all further statutory references are

to the Penal Code.
4 Appellant’s father, Ruben Flores (Ruben), was charged with
being an accessory after the fact to the murder (§ 32). (1CT 126-127.)
Although appellant and Ruben were tried together, they had separate
juries. (1Aug.RT 38.) Ruben was acquitted. (34CT 10171.)

19
6368-6390; 32CT 9585; 47RT 13805.) The trial court sentenced
appellant to state prison for an indeterminate term of 25 years to
life. (49RT 14531.)
Appellant filed a notice of appeal. (35CT 10285.)

STATEMENT OF FACTS
A. Prosecution evidence
1. Appellant showed that he was romantically
interested in Smart, but she had no interest
in him
In the fall of 1995, both appellant and Smart began their
freshman year in college at Cal Poly San Luis Obispo (“Cal
Poly”). (2RT 311-312, 341; 13RT 3700-3701.) Appellant lived on
the first floor of the Santa Lucia dorm, in room 128. (6RT 1578-
1579; 8RT 2233-2236.) Although Smart was initially assigned to
off-campus housing, she subsequently moved into the first floor of
the Muir Hall dorm, room 120, with Crystal Calvin (now
Teschendorf). 5 (2RT 341, 439; 6RT 1579-1580, 1587-1589; 14RT
4079.)
Smart became friends with a number of people who also
lived in the Muir dorm. These friends included Vanessa Brinley
(now Shields), Margarita Campos, and Steven Fleming. (3RT
685-687; 4RT 923-924; 6RT 1641-1642, 1661-1662.)
In early May of 1996, Brinley came to realize that appellant
was romantically interested in Smart. At two separate parties,

5 Like appellant’s opening brief, respondent refers to witnesses

by the surnames that they had in college even if there had been a
change by the time of the trial. Additionally, because two unrelated
witnesses share the last name of Moon, this brief will refer to those two
witnesses by their first name.

20
Brinley saw appellant stare at Smart in an intense and “creepy”
manner. At the second party, Brinley was standing with Smart
when appellant approached and made an awkward effort to
speak with Smart. After Smart showed that she was not
interested in appellant, he walked to the other side of the room.
But shortly thereafter, Brinley noticed that appellant was
“staring intently” at Smart. The “really focused” way that
appellant stared at Smart left Brinley “feeling very unsettled,
very uneasy.” (3RT 688-692, 705-706.) Smart never showed any
interest in appellant, and she expressly told Brinley that she had
no interest in appellant following their interaction at the party.
(3RT 693.) Smart viewed appellant as strange and creepy. (3RT
697.)
Campos also came to realize that appellant was romantically
interested in Smart. On one occasion when she was with Smart
at the campus grocery store, Campos saw appellant staring in
their direction. (4RT 950.)
Likewise, Fleming saw signs that appellant was
romantically interested in Smart. Although appellant did not
live at Muir, he spent some time in Muir’s common areas with no
apparent reason for being there. (6RT 1664-1666, 1675-1676.)
Fleming believed that appellant was following Smart and that it
made Smart uncomfortable. She never showed any interest in
appellant. (6RT 1664, 1667, 1672-1673, 1676.) On one occasion,
Fleming saw appellant inside Smart’s room. Smart’s body
language showed that she was not comfortable with appellant’s
presence. (6RT 1667-1669; 7RT 1892-1893.) Similarly, other

21
women at Cal Poly, including a tennis player named Hannah,
told Fleming that appellant made them feel uncomfortable. (7RT
1813-1817.)

2. On the night Smart disappeared, appellant

continued to show interest in her, and he was
the last person seen with her prior to the
disappearance
On Friday, May 24, 1996, appellant’s roommate, Derrick
Tse, drove to his family home in Oakland for that Memorial Day
weekend. Prior to leaving, Tse told appellant that he would not
return until Tuesday. 6 (8RT 2236-2238.)
On that same Friday, Smart was in a good mood as she
made plans to spend the extended weekend on campus. (3RT
693-695.) Smart called her parents and left a voicemail in which
she sounded excited. Smart said that she had some good news to
share with them on Sunday, which was the day of the week that
she regularly spoke with her family. (2RT 316, 331-332, 344-345,
411, 425-428, 435; 4RT 909-915.)
That evening, Smart and Campos spent time listening to
music and talking in Smart’s dorm room. They went out
together, but went separate ways before 10 p.m. (4RT 927-929,
934.) At the time, Smart was wearing black vinyl shorts, a gray
shirt, and red shoes. (4RT 937-938, 967-968.) She was “not
under the influence at all.” (4RT 967.)
Smart then went to a house party on Crandall Ave near the
Cal Poly campus. (4RT 1007-1011.) At two points during the

6Although Tse had no issues with appellant, he noted that

appellant would become confrontational and verbally aggressive when
he consumed alcohol. (8RT 2247-2248.)

22
party, appellant showed that he was interested in Smart. He did
so by approaching people he saw with Smart and asking about
her availability. (4RT 1007-1011; 7RT 1907-1908; 8RT 2110-
2112.)
The first instance occurred after Smart spent some time
talking with Ross Ketcham and Matthew Toomey. During the
conversation, Ketcham noticed that appellant was eyeing Smart
from across the room. (4RT 1012-1014.) When Smart had an
opportunity to speak privately with Toomey, she asked whether
Ketcham had a girlfriend. As soon as that conversation ended,
appellant approached Toomey to ask about Smart. After
expressing his belief that Smart was good looking, appellant
asked whether Ketcham had a relationship with Smart. (7RT
1909-1913, 1924-1928.)
The second instance occurred following an interaction
between Smart and Trevor Boelter. Smart introduced herself to
Boelter, gave him a quick kiss and escorted him into a bathroom.
(7RT 1920, 1952; 8RT 2149-2050, 2159-2160.) There, she
expressed some romantic interest in Ketcham, who was one of
Boelter’s friends. (8RT 2108-2109.) As soon as Boelter left the
bathroom, he was approached by appellant. Appellant asked
Boelter what he did with Smart in the bathroom. (8RT 2110,
2120.) When Boelter said “nothing,” appellant appeared to be
relieved. (8RT 2110-2112.)
But appellant’s romantic interest was not limited to Smart
during the house party. He made unwanted advances on two
females, Cheryl Anderson (now Manzer) and Kendra Koed.

23
 With respect to Anderson, appellant put his arm around her.
Because the contact was not consensual, Anderson walked away
from appellant. (4RT 1038-1039, 1049.)
With respect to Koed, appellant acted more aggressively.
When Koed started asking people for gum, appellant struck up a
conversation with her. Moments later, appellant started kissing
Koed without her consent. Koed pushed appellant away and
informed him that she had only wanted gum. (3RT 726-730.) At
that point, appellant said, “Okay.” Because Koed still wanted
gum and believed that he was going to retrieve it from a nearby
car, she followed him out of the house. But appellant suddenly
grabbed Koed’s arms and attempted to kiss her for a second time.
Koed pushed appellant away and walked back into the house.
(3RT 730-731.)
Both Koed and Ketcham subsequently saw appellant with
Smart at the party. Appellant was standing next to Smart with
his arm around her as she sat on a washing machine. When
Smart fell off the machine, appellant attempted to help her stand
up. (3RT 731-736, 748-749; 4RT 1014-1015, 1022, 1026-1030.)
Given Koed’s prior interaction with appellant, she was
uncomfortable with his behavior toward Smart. (3RT 736-737.)
Although Koed did not know Smart, she walked Smart to the
front patio and sat with her. Smart was very intoxicated. After a
few minutes, Koed returned to the party. (3RT 737-741, 780.)
Upon leaving the party later that night, some people—Koed,
Toomey, and Eric Wilkins—separately saw Smart lying on the
ground in front of the house. She appeared to be under the

24
influence or “drunk” and “semiconscious.” Although they offered
to help, Smart declined the invitations. (3RT 740-741, 776-777,
784; 7RT 1913-1920, 1946; 8RT 2176-2177, 2193-2194.)
Shortly thereafter, at around 1:30 or 2:00 a.m., Anderson left
the party with her friend, Timothy Davis. Upon seeing Smart,
who was still lying on the ground, they helped her up so that
Davis could walk both Anderson and Smart back to their dorms.
(4RT 1039-1040, 1043; 8RT 2195-2196; 10RT 2737, 2741-2750.)
Smart was very intoxicated. Her speech was slurred, and she
needed help standing. (4RT 1040; 10RT 2745-2749, 2783, 2797,
2816.) Suddenly, appellant appeared and said that he would
walk with the group back to the dorms. The four of them walked
together with Davis initially providing physical support to Smart.
But when Davis left the others to walk in the direction of his own
residence, appellant took over the responsibility of helping
Smart. (4RT 1043-1045; 10RT 2750-2751, 2755-2758, 2763, 2770,
2799-2806, 2809, 2814.)
Appellant helped Smart to walk for a short distance before
he stopped and began rubbing her arms. Smart did not respond
in any way. Appellant encouraged Anderson to continue walking
without them. But Anderson declined the invitation because she
did not want to walk by herself. (4RT 1045-1047.) The three of
them resumed walking before appellant stopped for a second
time. Appellant hugged Smart without receiving any response to
the affectionate behavior. Although appellant again encouraged
Anderson to go ahead without them, she declined to do so. (4RT
1047-1050.)

25
 When they got close to Anderson’s dorm, she asked appellant
if he would get Smart back home safely. Appellant assured
Anderson that he would do so. Appellant then asked Anderson
for a kiss. She refused. Undeterred, appellant asked Anderson
for a hug, but she refused that as well. After securing a second
commitment from appellant to get Smart back to her room safely,
Anderson walked home. (4RT 1054-1057, 1094.)
By that time, Calvin and one of her friends, Jana Schrock
(now Lord), had already arrived at the dorm room that Calvin
and Smart shared. Smart was not there. Calvin gathered her
belongings and went to her boyfriend’s dorm so that Schrock
could sleep in Calvin’s bed. (6RT 1594-1596; 14RT 3979-3980,
3988.)
At some point between 2:00 and 3:00 a.m., Schrock awoke to
the sound of someone knocking on the window of the first-floor
room. Schrock looked outside and saw that it was Ted Munley,
the roommate of Calvin’s boyfriend. At his invitation, Schrock
left the dorm to smoke a cigarette. (14RT 3984, 3992.) Standing
just outside the exterior door that was closest to Calvin’s dorm
room, Schrock smoked one cigarette and returned to the dorm
less than 15 minutes later. Schrock went back to sleep in
Calvin’s bed, and she told Munley that he could sleep on the floor.
Schrock awoke at 9:00 a.m. Smart was not there, and the
undisturbed pile of clothes on Smart’s bed suggested that she had
not returned the prior night. (14RT 3985-3987.)
When Calvin returned to her room in the late morning,
Schrock informed Calvin that she had not seen Smart. (6RT

26
1597; 14RT 3982-3983, 3987.) Moreover, the room looked
identical to when Smart and Campos left it during the early
evening hours the previous night. Additionally, the room
contained Smart’s everyday personal effects, like makeup and a
hairbrush, that she would not have left behind if she had gone on
a trip. (3RT 695-696; 4RT 942-946, 980-981; 6RT 1597-1599,
1632-1633.)
None of Smart’s friends or family ever saw or heard from
Smart again. (2RT 333, 335; 3RT 694; 4RT 915, 987; 8RT 2207.)

3. Appellant was seen with a black eye shortly

after Smart went missing, and he acted
strangely when asked by others about his eye
or Smart’s disappearance
On Sunday, May 26, 1996, appellant spent some time with
his friend, Jeromy Moon (“Jeromy”), in Arroyo Grande.
Appellant’s parents had a family home in that town on White
Court, which was about 13 miles away from the Cal Poly campus.
(9RT 2459-2466; 13RT 3668; 14RT 4022; 17RT 4882-4885.) Upon
noticing that appellant had a black eye, Jeromy asked about it.
Appellant said that he “woke up with it.” (10RT 2829-2832, 2849-
2850.) The next day, appellant and Jeromy spent several hours
together playing basketball. Appellant did not appear to get
injured during the game. (10RT 2832.)
When appellant’s roommate, Tse, returned from Oakland on
Tuesday night, appellant did not initially tell him that he was the
last person to see Smart. But Tse raised the issue with appellant
after hearing other people talking about it. (8RT 2248, 2260.)
When appellant acknowledged being the last person to see Smart,
Tse jokingly told appellant that he had probably done something

27
with Smart. Appellant looked Tse in the eyes and replied, “She’s
at my house, eating lunch with my mom.” Appellant’s demeanor
was “[p]retty serious” when he made the statement. (8RT 2245-
2247, 2250, 2263.) Appellant never told Tse that he went to his
family house during that Memorial Day weekend. (8RT 2248.)
The following day, appellant saw Mario Garcia, a Cal Poly
student with whom he often played pool. Although appellant had
a baseball hat pulled down unnaturally far, Garcia could see that
he had a black eye. When Garcia asked what happened to his
eye, appellant said that he had been pushed at a party.
Appellant seemed nervous when he made the statement. (9RT
2410-2412, 2424.)
During the weekend of June 8, 1996, appellant attended a
high school graduation party that was held in Arroyo Grande. At
the party, Karen Hall, whose son was one of the graduating
seniors, used a video camera to record conversations with her
son’s friends. (14RT 4014-4016.) With the camera recording,
Hall approached appellant, said something about him attending
Cal Poly and asked whether his name would be called in four
years at a graduation ceremony. He said, “no way.” At that
point, someone interjected that appellant’s name would be called
for a court date. In response, Hall asked appellant whether he
had information on the missing girl before asking, “What’d you do
with her.” Appellant said “nothin[g]” as he lowered his head and
resumed eating. (35CT 10397; see 14RT 4016-4019.) Appellant
never spoke to Hall again. (14RT 4019.)

28
 4. Upon being interviewed by the police,
appellant lied about his romantic interest in
Smart, the amount of contact he had with her
at the party, and the cause of his black eye
San Luis Obispo Police Officer Robert Cudworth interviewed
appellant at the Cal Poly campus store during the afternoon of
May 28, 1996. Appellant told the officer that had had not spoken
with Smart at the party on Crandall before he helped her walk
back to the dorms. Acknowledging that he was left alone with
Smart after Davis and Anderson each went their own way home,
appellant said that he subsequently separated from Smart.
Appellant claimed that he had not been romantically interested
in Smart. (12RT 3412-3418, 3426-3428.)
Detective Lawrence Kennedy interviewed appellant later
that day and again on May 30. (10RT 2872-2873, 2883; 12RT
3418-3419.) During the first interview, appellant’s breathing
suggested that he was very nervous. When Detective Kennedy
mentioned the nervous behavior, appellant said he thought the
detective wanted to arrest him for a traffic violation, which
previously resulted in a warrant before it was resolved. (10RT
2874-2878, 2890, 2903-2904.)
While interviewing appellant, Detective Kennedy noticed
that appellant had a bruised right eye as well as some scratches
or scrapes to one of his knees. (10RT 2874-2878, 2890, 2903-
2904.) When he was asked about the black eye, appellant
claimed that he got it playing basketball. (10RT 2878, 2892;
12RT 3337, 3419; see 35CT 10387-10391 [appellant claimed to
have sustained the bruise and scratches during a basketball
game with his friend, “Jeromy”].)

29
 Appellant told Detective Kennedy that he did not really
know Smart prior to the party on Crandall. Acknowledging that
he helped her walk home from the party and that he gave her two
hugs during the walk, appellant said that he did not have any
other physical contact with Smart. Appellant claimed that he
parted ways with Smart, whom he did not find attractive, near
Sequoia Hall because they lived in different dorms. (10RT 2879-
2882, 2888.) The distance from that location to Smart’s dorm was
less than 400 feet. (17RT 4895.) Asked how much he had to
drink that night, appellant said too much and claimed that he
threw up after the walk, “right when we got back, pretty well
much.” (35CT 10366.) Appellant said that he took a shower and
went to bed around 5:00 a.m. Asked whether anyone saw him
enter the residence, appellant said he did not see anyone upon
entering the building but did see someone later in the bathroom.
Appellant claimed that he could not remember the person he saw
in the bathroom. (35CT 10370; 10RT 2880, 2885.) Although the
detective stressed the importance of gathering information about
that person, no such witness was ever located during the
investigation. (10RT 2885-2887.)
On May 31, 1996, appellant was interviewed by two
investigators from the San Luis Obispo County District Attorney.
(13RT 3613-3614.) During this interview, appellant admitted
talking to Smart during the party. Appellant said that Smart
approached him and that she appeared to be intoxicated. The
conversation was brief, and they had no further contact until he
helped walk her back to the dorms. Appellant said that he had

30
no interest in Smart because he did not like the “type of girls”
who flirt with too many guys. Appellant claimed that he spent
the rest of Friday night in his dorm, hung around the campus on
Saturday, and went to a movie with a friend named Javier on
Saturday night. (13RT 3617-3626, 3674-3682.) Appellant said
that his father, Ruben, picked him up on Sunday morning and
brought him to the family home in Arroyo Grande. (13RT 3625.)
Appellant said that he did not see Jeromy prior to Monday when
they played a game of basketball in which appellant sustained an
elbow to his eye, which resulted in the bruise. (13RT 3625-3626.)
Asked what he thought had happened to Smart, appellant said he
believed she had gone off with someone and was no longer alive.
(13RT 3628.)
During a subsequent interview on June 19, 1996, appellant
initially claimed that he did not know how he sustained the
bruise to his eye. Appellant then gave two conflicting accounts
about the bruise. Appellant first claimed that he sustained the
bruise during a basketball game, but he then claimed that he
sustained it by accidentally striking his face on the steering
wheel of his truck while he was attempting to uninstall the radio.
(13RT 3628-3634, 3636; 35CT 10349-10352.) Confronted with his
prior claim that the injury occurred during a basketball game,
appellant said that he told the “white lies” because the issue was
not important. (13RT 3634; 35CT 10352-10353.) Denying
Jeromy’s assertion that he saw appellant’s bruise on Saturday,
appellant claimed that his father did not pick him up at Cal Poly
and bring him to Arroyo Grande until Sunday and that he did not

31
see Jeromy until Monday. (35CT 10357-10358.) As to the party
on Crandall, appellant denied ever seeing Smart on the floor
inside the house, and appellant denied ever kissing any female
during that party. (13RT 3634-3635.)

5. During the summer of 1996, appellant called

Smart a “dick tease,” and he admitted to
having buried her underground
During the summer of 1996, Jennifer Hudson was a 17-year-
old girl who lived in Huasna, a rural town that was just outside
of Arroyo Grande. Her boyfriend at the time, Brent Moon
(“Brent”), enjoyed skateboarding. (26RT 7552-7555.)
One day that summer, Hudson and Brent went to a house
where Brent and other people made use of a skateboard ramp.
Meanwhile, Hudson sat inside the house near appellant and a
third person, who was known to Hudson only as “Red.” (26RT
7556-7557, 7561, 7601-7602.) As they listened to the radio,
Hudson heard a public outreach asking for any tips about the
disappearance of Smart. (26RT 7555-7558.) As soon as the
commercial break ended, appellant made a comment about
Smart. He said that Smart was a “dick tease” and that he had
been sick of waiting for her. Appellant also said that he had
either “put her” or “buried her” at his place in Huasna, under a
skateboard ramp. (26RT 7558, 7563, 7575-7582.) When
appellant made the statement, his eyes looked vacant, and his
demeanor was very cold, without any smile, smirk, or other
suggestion that he was attempting to be humorous. Moreover,
appellant did not appear to be intoxicated. (26RT 7558-7559.)

32
Because Hudson was “creeped out,” she left the house minutes
later. (26RT 7559.)
Two weeks later, Hudson saw appellant during a chance
encounter when she drove a few acquaintances to a place where
people liked to skateboard. Upon seeing Hudson, appellant
approached and asked if she wanted to go “skinny dipping.”
Hudson vomited, shut her car door, and drove back home.
Hudson did not call the police because she was afraid, especially
because she was living on her own. 7 (26RT 7561-7563.)
In 2001 or 2002, Hudson told her best friend, Justin
Goodwin, about appellant’s statement concerning Smart. Hudson
told Goodwin not to tell anyone because she was afraid of getting
involved. (26RT 7563-7565; 28RT 8205-8209, 8260.) Goodwin
did not provide the information to any law enforcement agency
until 2019. (28RT 8210, 8214.) By that time, Hudson could no
longer remember the name of the two acquaintances that had
been with her during her second interaction with appellant.
(26RT 7607.)

7 Hudson testified that appellant had a green or blue Ford

Ranger during her first encounter with him and a white pickup truck
during the second. (26RT 7561-7562, 7601-7601.) DMV records
showed that, during that time period, the Flores family owned a
blue/green Ford Ranger and a white Nissan pickup truck. (32RT 9378-
9381.)

33
 6. Four dogs, which had been trained and
certified in locating human remains,
separately searched the Santa Lucia dorm
and passed numerous rooms before alerting
their respective handlers that someone had
died in appellant’s room
On June 29, 1996, three dog handlers, with expertise in
using dogs to find locations where someone had died, responded
to Cal Poly. The dogs that they brought were all reliable and
certified in the detection of human remains. (15RT 4239-4260,
4274-4278, 4295, 4305-4306, 4315, 4335; 16RT 4569-4570, 4577-
4587, 4594; 18RT 5109-5131, 5211-5212.)
Adela Morris brought her dog, Cholla, to the first floor of the
Santa Lucia dorm and gave the dog a command to search for
human remains. At the time of the search, Morris possessed no
information that could have resulted in bias. (15RT 4278-4279;
16RT 4520-4521.) Morris removed Cholla’s leash, which allowed
the dog to freely go down a long hallway of rooms that all had
closed doors. At one of the doors, Cholla provided an alert signal
for human remains by coming back to Morris and jumping on her.
(15RT 4284-4286; 16RT 4527.) The room was number 128.
There was no police tape on the door or other indication that it
was appellant’s room. (15RT 4287, 4320-4321; see 8RT 2234-
2236.) When the door was opened, Cholla repeatedly and
enthusiastically gave an alert for the bed on the left, which was
appellant’s side of the room. Cholla showed absolutely no
interest in the other side of the room. (15RT 4288-4290, 4296-
4297, 4316-4317; see 8RT 2240.) Upon leaving appellant’s dorm
room, Morris had Cholla walk the entire hallway of all three
floors of the Santa Lucia dorm. Cholla did not alert on any other

34
dorm room. (15RT 4303-4305.) Cholla also did not give any alert
signal upon being taken to Smart’s room at Muir Hall. (15RT
4316.)
Morris subsequently conducted a separate search of the
Santa Lucia dorm with her second dog, Cirque. Like Cholla,
Cirque alerted on the left side of appellant’s dorm room, and the
dog did not alert on any other dorm room throughout the three
floors of the building. (15RT 4309-4310.)
Like Morris, Wayne Behrens took his dog, Sierra, to the
Santa Lucia dorm to search for human remains. Behrens
initially allowed Sierra to walk along the outside of the Santa
Lucia building off leash. At some point, Sierra showed interest in
a particular windowsill by placing her front paws on it. Because
Behrens was not following the dog closely, he was unable to
ascertain exactly which one of three windowsills Sierra had
touched. (16RT 4580-4581, 4586-4587, 4622.) Upon entering the
Santa Lucia building, the unleashed dog was allowed to search
the first floor. Sierra passed numerous dorm rooms as well as a
common area before showing a desire to get inside one room.
(16RT 4588-4590, 4593.) The room was number 128. (16RT
4590.) After the door was opened, Sierra went to the bed on the
left side of the room and gave the sign of a clear and
unambiguous alert by jumping on Behrens. (16RT 4591.) The
windowsill for Room 128 was one of the three windowsills that
Sierra may have identified from outside the building. (16RT
4595.)

35
 At that point, a detective collected appellant’s mattress and
box spring cover. (12RT 3444-3449; 14RT 3914, 3937-3948, 3971-
3974; 30RT 8786-8787.) The box spring cover had a small
brownish stain. When the stain was subjected to a presumptive
test for blood, it produced a positive result. DNA testing of the
stain showed that Smart and appellant could neither be included
nor excluded as having contributed to the mixture. (30RT 8742-
8745, 8787, 8792; 32RT 9315, 9324-9326, 9345, 9367.)
Later, Gail LaRoque took her dog, Torrey, to the Santa Lucia
dorm to search for human remains. From a doorway on the first
floor, LaRoque watched as Torrey went down the hallway. After
passing a number of rooms, Torrey provided an alert on room
128. (18RT 5131, 5137-5139.) Upon entering the room, Torrey
alerted on the bed frame that had no mattress, which was on the
left side of the room. (18RT 5147-5149.)
Appellant’s first-floor room was 20 to 30 feet from the
nearest side exit of the building. (12RT 3444-3449; 15RT 4218.)
Additionally, the dorm room had a large window that could be
opened with the use of hinges. The frame for the window was
69.5 inches in width, with a half-window on the right side that
was more than 35 inches wide. The height of the frame was 46
inches, and it began 36 inches above the floor. (14RT 4041-4046.)
Telephone records for appellant’s dorm room showed that, on
Sunday, May 26, 1996, a call was placed from the dorm room to
the number associated with his family’s home on White Court.
The call, which was placed at 9:47 a.m., lasted 50 seconds. (9RT
2459-2466; 12RT 3437; 13RT 3668; 14RT 4022-4023; 17RT 4882-

36
4885.) The next call from the dorm to the White Court address
occurred on May 28, 1996, at 7:42 p.m., which was shortly after
appellant had been interviewed by the police. The call lasted
seven minutes. (14RT 4023-4024.) As soon as that call ended, a
new call was placed to a number associated with appellant’s
sister, Ermelinda, who lived less than one mile from the campus.
The call lasted 38 seconds. (14RT 4022-4025, 4049-4050.)

7. Appellant and his father kept people away

from the deck on White Court
One day during the summer of 1996, Smart’s father, Stan,
drove to White Court and parked on the street in front of the
Flores property. As Stan got out of his car, Ruben came out and
met him on the public street. When Stan identified himself and
said that he wanted to talk, Ruben said, “No, you ought to leave
or someone might get shot.” Stan drove away. (2RT 431-434.)
Angie Carrizel dated appellant for two years starting in
2004. (18RT 5226-5227.) At some point during their
relationship, Carrizel went with appellant to meet appellant’s
parents at the house on White Court. When Carrizel stepped into
the backyard, she noticed a change in the demeanor of appellant
and Ruben. They acted like they did not want her to be in the
backyard. Carrizel was quickly redirected to the front of the
house, and she was never invited to return to the residence.
(18RT 5228-5233; 19RT 5413; 24RT 6907-6908; see 35CT 10395.)
David Stone rented a room from Ruben at the White Court
house from 2010 until 2020. (20RT 5774.) At some point during
that period, a plumber came to the house to fix a leak under the
kitchen sink. But when the plumber told Ruben that he needed

37
to go under the deck to fix it, Ruben told him to forget about it.
Stone believed appellant fixed the problem. (20RT 5783-5784,
5805.) At another point, Ruben became upset with Stone for
placing some large, empty drums under the deck without
obtaining his permission. (20RT 5799-5800, 5806.)

8. Appellant failed to respond when his mother

suggested that he might not be able to
“punch holes” in a podcaster’s accusation
that he was responsible for Smart’s
disappearance
On January 6, 2020, Detective Gregory Smith initiated a
court-approved wiretap for 30 days on cell phones that belonged
to appellant, his parents, and his sister. (21RT 6022-6024.) To
stimulate conversation within the Flores family, detectives
leaked some information to a person who released podcasts about
Smart’s disappearance. 8 (21RT 6033.)
On January 26, 2020, appellant’s mother, Susan, referenced
the podcast during a telephone conversation with him. (21RT
6025-6026.) At one point during the conversation, appellant
replied affirmatively when Susan told him, “I need you to make
the call. I would think. ‘Cause uh—I need to know where it’s
at…You know to make sure that you’re covered ‘cause the rest of
us are.” (35CT 10396; see 21RT 6026.) Immediately thereafter,
Susan said:
And they’re gonna work together, these four attorneys.
If we ever get to that point. Which I don’t know if we
will or not. The other thing I need you to do is to start
listening to the podcast. I need you to listen to
8Chris Lambert’s podcasts about Smart’s disappearance
contained segments that focused on appellant, including an episode
that was entitled, “The Only Suspect.” (3RT 753; 21RT 6033.)

38
 everything they say so we can punch holes in it. Um,
wherever we can punch holes. Maybe we can’t. Y—
you’re the one that can tell me.

(35CT 10396.) At that point, Susan changed the subject. (35CT

10396; 21RT 6039.)
On February 5, 2020, detectives obtained a warrant and
searched the Flores house on White Court. In Ruben’s bedroom,
a detective found newspaper articles and postcards about Smart’s
disappearance. (20RT 5812, 5816-5822.)
Four days after the White Court house was searched, one of
Ruben’s neighbors, Jamilyn Holman, heard some yelling. When
Holman looked at Ruben’s property, she saw a cargo trailer, a
travel trailer, and a white van. She had not previously seen any
of those vehicles at Ruben’s house. (20RT 5830-5831.) The cargo
trailer was backed up to the garage with the garage door opened.
(20RT 5833.) Later that day, Holman saw the cargo trailer
parked to the right side of the house. All three vehicles were still
there the following morning. (20RT 5834.)

9. In 2021, two dogs, which had been certified in

finding human remains, detected the
presence of remains under the deck of the
Flores home
Kristine Black, the assistant director for the Santa Clara
Sheriff’s Search and Rescue Team, became a dog handler and
began working with canines certified in detecting human
remains. (21RT 6051-6057.) In 2017, Black started working with
a certified and reliable dog, Annie. They responded to more than
70 search requests. In one search for human remains, Annie
found a human skeleton that was buried nine feet under the

39
ground. (21RT 6065-6070.) In another, Annie properly gave no
alert for human remains after clearing a yard that had a dog
skeleton buried just 12 inches under the ground. (21RT 6066-
6067.)
On March 15, 2021, Black went with Annie to the Flores
home on White Court. (21RT 6070.) After completing a grid
search of the backyard, as well as a Volkswagen and a crawl
space under the house without providing an alert for human
remains, Annie went under the deck. (21RT 6072-6076.) While
searching under the deck, Annie provided an indication that she
had discovered the scent of human remains. (21RT 6077.) But
Annie did not provide a final alert, which was consistent with a
situation in which the primary scent of human remains had been
removed. (21RT 6082-6085.)
On the same day that Black searched the White Court
property with Annie, another certified dog handler, Karen
Atkinson, searched it with her dog, Amiga. Amiga was certified
and reliable in human remains detection, having worked on more
than 100 cases. (22RT 6308-6320, 6325-6327.) Like Annie,
Amiga showed no interest in the Volkswagen, the crawl space, or
the backyard. But Amiga indicated that the targeted odor
existed under the deck. (22RT 6328-6343.)

10. Ground penetrating radar showed that an

area under the Flores deck had been dug by
hand with dimensions that were consistent
with a human grave
Philip Hanes was an archaeologist with expertise in the use
of radio waves, or ground penetrating radar, which he used to
look for underground anomalies in finding burial locations.

40
Hanes described an anomaly as anything different from its
nearby environment, which could include a void or simply a
change in the soil. (22RT 6353-6356, 6362.) Hanes explained the
significance of soil density in searching for burial locations. After
noting that soil becomes more compressed over time, Hanes
explained that, if dirt has been excavated and then redeposited,
an anomaly would be shown on the radar machine because some
air would have been introduced into that soil. (22RT 6356-6357.)
Hanes had used ground penetrating radar to find remains in
some “cold case” investigations, as well as in locating cemeteries
that were more than 100 years old. The machine that Hanes
used was designed for relatively shallow geological investigations
that were generally no more than 10 feet deep. It provided the
rough dimensions, plus or minus 12 inches, for any anomaly it
found. (22RT 6360-6363, 6382.)
At the request of the San Luis Obispo Sheriff’s Department,
Hanes went to the Flores property on White Court on March 15,
2021. After using his machine to cover the backyard, Hanes
found that there were four locations in which there was some
anomaly. (22RT 6363-6365.) One of the four locations was under
a deck. 9 (22RT 6366-6367.) Hanes believed the location under
the deck was the most promising area of the four because it
consisted of an anomaly from the surface area to depth, which
would need to occur if a hole had been dug. Additionally, the size

The deck on White Court was built in 1991 by a contractor,

9

Edward Chadwell. In building the deck, Chadwell did not find any
human or animal remains in the ground. (20RT 5716-5719.)

41
of the anomaly was consistent with a burial location because it
was roughly six feet by four feet with a depth of between three
and four feet. As to the other three locations, one was very small
and had little anomaly near the surface, another was a
widespread and diffuse anomaly that was likely attributable to
tree roots, and the final one likely occurred during the
construction process because it was right next to the house.
(22RT 6367-6371, 6407.)
Cindy Arrington, an archaeologist with expertise and
certification in the recovery and identification of human remains,
went to the Flores house after Hanes had finished using the
ground penetrating radar. (23RT 6609-6612, 6621-6626.) In
excavating the soil under the deck, Arrington noticed a lack of
continuity, with jumbled soil showing that there been a prior
excavation in that area that was about six feet by four feet with a
depth of four feet. As no mechanical marks were visible near the
edges of the excavated area, Arrington opined that the area had
been dug by hand with a shovel rather than by a machine. (23RT
6614-6619, 6626-6633, 6668.)

11. Under the deck, at a depth of about four feet,

the soil contained some blood as well as some
fibers, both cotton and synthetic
During the excavation under the deck, Arrington noticed
dark staining on some of the soil. The staining, which had an
irregular pattern, was consistent with human decomposition that
results when fluids slowly leak into the soil, especially if the body
was wrapped in something like a tarp. (23RT 6614-6619, 6626-
6633, 6668.) Additionally, Arrington noticed that some of the

42
staining had been interrupted and that there were no bones in
the hole, which was consistent with some decomposition
occurring in a hole before that area was excavated for a second
time with the removal of the decomposing object. (23RT 6669-
6678.)
Shelby Liddell, a forensic specialist with the San Luis
Obispo Sheriff’s Department who was present during the
excavation, noticed the same dark staining of soil. Liddell took
samples of the stained soil at more than one depth. (25RT 7217-
7221, 7236-7248.) Liddell later took six different control samples
of the soil on the property, including one of unstained soil that
was very close to the stained soil that had already been collected.
(2RT 7225-7226.)
Faye Springer, who was an expert in analyzing trace
evidence, used a stereomicroscope to analyze fibers that were
found during the excavation under the deck. (26RT 7508-7509,
7513-7515, 7544, 7549; 30RT 8732.) Some of the fibers were
cotton, while others were synthetic, like vinyl or polyester. The
fibers included red, black, brown, and blue strands, as well as
some light-colored ones that could have been white. (26RT 7515-
7516, 7519-7520, 7523-7527.)
Angela Butler, a forensic DNA analyst at the Serological
Research Institute who was an expert in DNA and fluid
identification, examined the soil that was collected from the
excavation under the deck. (28RT 8265, 8286; 30RT 8707-8708;
32RT 9367-9369.) Using a HemDirect test, which detects
hemoglobin that is found in the blood of humans, ferrets,

43
monkeys, and higher primates, Butler found no indication of
hemoglobin in the upper, unstained soil samples. (28RT 8280-
8281; 30RT 8714, 8769-8771.) But some deeper soil samples
tested positive for human blood. (30RT 8714-8715, 8727-8731,
8739, 8772.) Butler was unable to assess blood type or extract
any DNA from the samples. (30RT 8722-8723, 8729-8730, 8735-
8736.)

12. A few months after the search of the ground

under the deck, Ruben admitted having
committed a felony
Having searched the Flores property, detectives obtained a
warrant to collect DNA samples by means of buccal swabs from
both of appellant’s parents and from Mike McConville, who was
the owner of the cargo trailer that had previously been parked in
front of the property. 10 (32RT 9402-9404.)
On May 21, 2021, detectives went to the Flores residence to
obtain those samples. Ruben opened the door and began
reviewing the warrant. (32RT 9402-9405.) Upon reading that
the warrant applied to Susan and McConville, Ruben said, “They
haven’t committed no felonies.” After a brief pause, Ruben said,
“Only me.” But then Ruben showed some concern about his

10 When a Bluestar chemical test was applied to the inside of a

cargo trailer that had been parked on the Flores property, a blue glow
was visible in the dark. That glow signified the likely presence of blood
inside the trailer. (25RT 7249-7256.) But the Bluestar test result was
not conclusive for human blood because the chemical can also react to
“certain animal blood” as well as to bleach, paint and varnish. (25RT
7255.) DNA testing of plywood removed from the trailer established
that it contained a mixture of DNA in which McConville could not be
excluded. (25RT 7256-7257; 30RT 8742.)

44
admission and attempted to correct it by stating that he was the
only one of the three to have been arrested. (32RT 9406, 9410.)

13. Uncharged crimes -- appellant raped two

women after giving them a roofie or another
drug to render them unconscious
a. Appellant raped R.D. in 2008
In 2008, R.D. went with some friends to a bar in Redondo
Beach called the Thirsty Club. As they prepared to leave and
return to R.D.’s house, one of her friends, Gabe, invited appellant
to join them. (17RT 4814-4818.) Appellant accepted the
invitation but said that he needed to stop by his house first.
Although they offered to give him directions to R.D.’s home, he
convinced R.D. to go with him. R.D. had consumed a few
alcoholic beverages that night, but she was not intoxicated.
(17RT 4818-4819.)
After appellant and R.D. walked together to his house, he
went into the kitchen and returned with a glass of water that he
gave to her. R.D. drank it. (17RT 4818-4822.) Shortly
thereafter, R.D. lost consciousness. When R.D. regained
consciousness, she was naked on appellant’s bed, and he was
having sexual intercourse with her. R.D. lost consciousness
again. When she regained consciousness, she was face down on
appellant’s bed with a red ball gag in her mouth. Appellant was
having anal sex with her. At several points during the sexual
assault, appellant asked R.D. if she knew his name. He was
pleased when she said that she could not recall it. After the
assault ended, R.D. curled up beside appellant’s bed and cried.
He drove her home. (17RT 4823-4826.)

45
 R.D. did not report the crime in 2008 because she believed
that rape cases were not usually prosecuted. (17RT 4827.) But
when she saw appellant’s photograph in connection with the
Smart case, R.D. reached out to law enforcement. (17RT 4827,
4830, 4843.)

b. Appellant raped S.D. in 2011

One night during the spring of 2011, S.D. and a female
friend went to the Crimsin Bar in San Pedro. When they arrived,
there were only six people inside the bar. Appellant was one of
them. As she talked with her friend, S.D. noticed that appellant
looked in their direction quite often. (24RT 6912-6914.)
When S.D. and her friend stepped outside the bar to smoke a
cigarette, appellant followed them. After they had some friendly
conversation, appellant purchased a drink for each of them.
(24RT 6915-6916.) Although S.D. only had a total of about four
drinks over a period of four hours, she did not remember much
from the remainder of the night. S.D. had consumed a similar
amount of alcohol on occasions, both before and after that night,
without ever having such difficulty with memory. (24RT 6918-
6920.)
After leaving the bar, S.D. remembered being alone with
appellant at his house. Upon drinking something that appellant
gave her, S.D. started going in and out of consciousness. S.D.
remembered being in a bedroom with appellant on top of her. He
was engaging in nonconsensual sexual intercourse with her.
(24RT 6920-6922.) At some point, appellant attempted to gag

46
S.D. with a red ball, but she screamed. 11 Appellant attempted to
forcibly put the gag into her mouth several more times before
ultimately giving up. When she awoke in the morning, S.D. got
dressed and left the house. As she walked out of the house, S.D.
told appellant that “no means no.” He looked down and said,
“okay.” (24RT 6922-6925.) S.D. did not immediately report the
crime to the police because she had been so confused that night.
(24RT 6927.)

B. Defense evidence
Detective Clinton Cole testified that, on November 14, 2019,
Goodwin told him what he had heard from Hudson concerning
Smart’s disappearance. When Detective Cole spoke with Hudson
a few days later, she told him about appellant’s 1996 admission.
Specifically, Hudson said that appellant admitted that he had
been at a party with the “bitch” where she was just leading him
on, that he finally had enough of her “shit,” and so he “took care
of her” and buried her underground at his place in Huasna.
Hudson told the detective that a person known as Red was sitting
near her at the time, but she did not know Red’s actual name.
Detective Cole was not able to identify Red. (36RT 10563-10573,
10587.) But given Hudson’s statement, two locations in Huasna
were excavated. Neither location contained any human remains.
(36RT 10537-10539.)

11A computer found during the 2020 search of the Flores house
contained a video of a woman with a red ball gag in her mouth. A still
photograph taken from the video was shown to the jury. (32RT 9376,
9412-9417; Peo. Exh. 458.)

47
 Hudson’s former boyfriend, Brent, testified that she never
told him about appellant’s admission. But Brent acknowledged
that, after the day in which the admission allegedly occurred,
Hudson immediately stopped going with him whenever he went
skateboarding. Brent was somewhat surprised by Hudson’s
change of behavior. Brent knew Red, but he did not know Red’s
actual name. Brent did not know appellant. (34RT 9985-9987,
9992-9997.)
Dr. David Carter, a professor of forensic sciences who
focused on the study of decomposition with most of his research
involving animal remains rather than human remains, viewed
the photographs and reports of the excavations at the Flores
property. (33RT 9611-9616, 9678.) Carter testified that he had
not seen any data from the Flores excavations that confirmed the
presence of decomposing human remains. (33RT 9631-9634,
9642, 9730.) Carter explained that the excavations failed to
uncover items that he would expect to see at a burial location,
such as hair, teeth, clothing, or other accessories connected to the
remains. (33RT 9642-9643, 9675.) With respect to the staining,
Carter testified it looked different from the staining he had seen
at other burial locations. He opined that the stains looked like
bands of clay with “high iron content.” (33RT 9667.) But Carter
acknowledged that a person who was personally present during
an excavation would be in a better position to make an evaluation
as to a potential burial location rather than one who only looked
at photographs. (33RT 9681.) Carter further acknowledged that

48
the presence of human blood “could be” consistent with a grave
site. (33RT 9689.)
Dr. Elizabeth Johnson, a forensic DNA consultant, opined
that the HemDirect results were unreliable. Johnson was
unaware of any study that addressed the accuracy of the test
when applied to soil samples. Johnson stated that the accuracy
of the test could have been affected by the pH of the soil, which
was never tested. Additionally, Johnson stated that blood tends
to degrade quickly when exposed to the elements. (33RT 9743,
9773-9784, 9791-9797; 34RT 9909.)

C. Rebuttal
Butler addressed the reliability of the HemDirect test on
older blood. Specifically, Butler explained that the test was able
to detect the hemoglobin in blood for stains that had been in
existence since the 1970s. (37RT 10833-10834.)

ARGUMENT
I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S
FINDING THAT JUROR NO. 273 HAD NOT LOST HER ABILITY
TO REMAIN NEUTRAL

Appellant contends the trial court violated his constitutional

right to a unanimous verdict of impartial jurors by declining to
remove Juror No. 273. According to appellant, the court was
required to find Juror No. 273 was unable to remain neutral and
follow the court’s instructions. First, appellant asserts the juror
demonstrated a lack of neutrality by advising the court that she
had experienced some anxiety from defense counsel’s aggressive
cross-examination of prosecution witnesses. Second, appellant
asserts a lack of neutrality was displayed when the juror showed

49
some emotion during witness testimony and then explained that
she reacted emotionally when she began to view appellant as
possibly guilty. Finally, appellant asserts that the juror failed to
follow the court’s instruction not to discuss the case with anyone
prior to deliberations. (AOB 41-51.)
Appellant’s claim lacks merit because substantial evidence
supports the trial court’s finding that Juror No. 273 could serve
as an impartial and unbiased juror. The court was not required
to find that the juror was incapable of fulfilling her duties simply
because she cried, experienced some anxiety from defense
counsel’s aggressive questioning, and came to realize that the
evidence might establish appellant’s guilt. Additionally, there
was no indication that Juror No. 273 had any substantive
discussion about the case or otherwise received any extraneous
information. Under the foregoing circumstances, it was
reasonable for the court to find Juror No. 273 credible in her
repeated assertions that she was willing and able to keep an open
mind to impartially decide the case based solely on the evidence
presented at trial.

A. Factual background
At a break during the testimony of a prosecution witness,
Juror No. 273 informed the bailiff that she wanted to address the
trial court. At a hearing held in the presence of counsel, Juror
No. 273 stated that she had been experiencing some anxiety, but
that she was not feeling biased toward any person whatsoever.
Specifically, she said:
I do feel that I’m experiencing some anxiety from the –
like, sometimes the aggressiveness of the questions or

50
 the repetitions of the questions that had already been
answered. [¶] So I’m like, every time, I guess, you
know, it’s in my head, and I just feel like a little bit of –
and I don’t know if that’s just me or maybe that’s
something everybody experiences because we can’t talk
to anybody about it so I just wanted to hear what you
had to say about it. [¶] And, you know, it’s just like – I
– it’s hard to put into words. It’s just like this, like,
feeling of tension in my chest so – it’s not that I feel a
certain way about any particular person at all. I feel
I’m very unbiased in the situation so it’s not so much
directed towards what’s – what the topic is, I guess, it’s
more of just interactions.

(7RT 1847.) Advising the juror that “sometimes things get

heated” during trial because there were sides “with different
versions,” the court told the juror that her feelings were natural
and that she should reach out again if her anxiety caused her
difficulties. (7RT 1848.)
Appellant’s attorney thereafter asked the trial court to
excuse Juror No. 273, arguing that she was biased against the
defense because of his aggressive questioning. But the court
denied the request after finding no indication of bias. (7RT 1851-
1853.)
After detectives testified about a court-approved wiretap and
a search of the White Court property that was based on a
warrant, Juror No. 273 submitted a question. The question
asked, “What qualified the warrant to be approved, specific items,
meetings, conversations, any relevant [evidence] found?” (21RT
6047.)
When a prosecution witness later testified that the dark
staining of soil under the deck at the Flores home was consistent

51
with fluids being released during human decomposition, Juror
No. 273 gasped, began to cry, and asked the trial court for a
break. (23RT 6634-6636.) During the break, Juror No. 273
issued an apology to the courtroom deputy before stating that she
had been completely neutral until she heard the testimony and
started to feel that appellant could be guilty. (23RT 6640
[Deputy Sullivan reported hearing juror say that she came to
believe that appellant “was probably guilty”], 6655 [Deputy
Sullivan reported hearing juror say that she “felt for the first
time that there could be guilt”].) In response to the outburst and
comment, the court asked some questions of Juror No. 273 and
reminded her of the duties required to serve as a juror. Juror No.
273 said that she was doing okay and that she would be able to
base her decision on the evidence without allowing bias,
sympathy, or prejudice to affect her decision. (23RT 6647-6650.)
Juror No. 273 further stated that she had not made up her mind
about the case. The juror further assured the court that she
would consider all evidence and that she would listen to the
views of other jurors during deliberations. (23RT 6650, 6656.)
Juror No. 273 stated that she could perform all the duties of a
juror fairly and impartially, with an open mind to all of the
evidence that had yet to be presented. Expressing a belief that
she would not have any problems listening to the remaining
evidence, Juror No. 273 advised the court that she would ask for
a break if she needed one in the future. (23RT 6651-6652.)
Given the juror’s responses, the court declined a defense request
to excuse Juror No. 273. (23RT 6661.) But, to address defense

52
counsel’s additional concern that the outburst could have affected
other jurors, the court subsequently reminded the jurors about
their duties before inviting them to submit a note if they had any
questions or concerns. (23RT 6665-6667.)
After some additional prosecution witnesses testified, Juror
No. 273 requested a short break in the evidence. When the trial
court asked the reason for the break, the juror explained that she
had been experiencing some anxiety because some of the
questioning by the defense “felt a little aggressive.” (28RT 8287.)
Juror No. 273 explained that she just had not previously
experienced situations where there was repetitive questioning
even though she understood that it could be the job of a lawyer to
do so. The juror also stated that the questioning felt “a little bit
more aggressive” when an attorney and a witness talked over
each other. (28RT 8289.) Asked whether any aspect of the
defense questioning caused her to form an opinion about the case
or would make it difficult to deliberate, Juror No. 273 said that it
would not and that she could be a fair and impartial juror. (28RT
8290.) The court denied a defense request to excuse Juror No.
273. (28RT 8293-8299.)
At a break during the defense case, the trial court brought
Juror No. 273 into the courtroom to address an issue concerning
the juror’s social media presence. Specifically, the court stated
that Juror No. 273 had a Pinterest board that had tips on septic
systems, the removal of tree stumps, and the ability to test soil
pH without a kit. The court noted that soil pH was an issue that
had been covered during the trial. (37RT 10807-10808.) In

53
response to the court’s inquiry, Juror No. 273 stated that the tips
predated her selection as a juror and that she had not conducted
any research related to appellant’s case. (37RT 10812-10813,
10819-10820.) Juror No. 273 said that she knew people who had
listened to the podcast concerning the case, but she had not
allowed them to tell her anything about it. (37RT 10820.)
Although defense counsel again asked the court to remove Juror
No. 273, the court denied the request after finding that the juror
had not received outside information. (37RT 10824-10828.)

B. A trial court’s denial of a request to discharge a

sitting juror will be upheld if supported by
substantial evidence
The federal and state Constitutions guarantee a criminal
defendant the right to a trial by an impartial and unbiased jury.
A deprivation of that right occurs even if only one juror is biased.
(People v. Brooks (2017) 3 Cal.5th 1, 98.) As such, a trial court
will discharge a sitting juror for good cause if the record shows as
a “demonstrable reality” that a juror is incapable of, or unwilling
to, decide the case based solely on the evidence. (§ 1089; People v.
Lopez (2018) 5 Cal.5th 339, 365; People v. Cleveland (2001) 25
Cal.4th 466, 474-477.) But “[g]reat caution is required when
deciding to excuse a sitting juror.” (People v. Allen and Johnson
(2011) 53 Cal.4th 60, 71.) Indeed, the California Supreme Court
has recognized that, because the jury is a “fundamentally
human” institution, the system cannot function unless the courts
“tolerate a certain amount of imperfection short of actual bias.”
(In re Hamilton (1999) 20 Cal.4th 273, 296.)

54
 A trial court’s denial of a request to discharge a juror is
reviewed for an abuse of discretion and will be upheld if
supported by substantial evidence. (Lopez, supra, 5 Cal.5th at p.
365.) Accordingly, the evidence will not be reweighed on appeal.
(Ibid.) Thus, where a juror has given conflicting responses, an
appellate court must defer to a trial court’s determination that
the juror would be able to perform the duties fairly and
impartially. (People v. Mickel (2016) 2 Cal.5th 181, 217.)
A juror may be discharged if that juror “becomes physically
or emotionally unable to continue to serve as a juror due to
illness or other circumstances.” (Cleveland, supra, 25 Cal.4th at
p. 485.) Likewise, dismissal may be appropriate if a juror
expresses “a fixed conclusion at the beginning of deliberations
and refuses to engage with other jurors.” (People v. Jones (2020)
50 Cal.App.5th 694, 700.)
But a trial court is not required to discharge a juror who
expresses a belief in their own ability to serve merely because
that juror has previously shown emotion or reported being
stressed. (See, e.g., Lopez, supra, 5 Cal.5th at p. 365; People v.
Beeler (1995) 9 Cal.4th 953, 972.) In Lopez, the California
Supreme Court found no abuse of discretion in declining to
discharge a juror who expressed a willingness to continue
deliberating after having asked to be excused from the trial
because she was so stressed that it prevented her from doing her
job. (Lopez, supra, 5 Cal.5th at p. 365.) In Beeler, our high state
court found no abuse of discretion in declining to discharge a
juror who, after having an emotional outburst in which she cried

55
and doubted her ability to serve in such an unsettling case,
apologized for the outburst and believed that she would be able to
serve. (Beeler, supra, 9 Cal.4th at pp. 972-975.)
Likewise, a trial court is not obligated to discharge a juror
who, prior to the onset of deliberations, expresses some belief
that the defendant may be guilty. (Allen and Johnson, supra, 53
Cal.4th at p. 72 [dismissal improper where juror’s statement
suggesting that he had prejudged the case was “not entirely
clear”]; People v. Kipp (1998) 18 Cal.4th 349, 366 [it was
reasonable for trial court to determine juror would impartially
perform duties despite expressed prejudice against defendant’s
appearance]; People v. Goldberg (1984) 161 Cal.App.3d 170, 192
[no good cause to discharge juror who ultimately recanted her
initial claimed inability to judge impartially]; People v. Franklin
(1976) 56 Cal.App.3d 18, 25-26 [same].) Indeed, the California
Supreme Court has recognized that “it would be entirely
unrealistic to expect jurors not to think about the case during the
trial.” (People v. Ledesma (2006) 39 Cal.4th 641, 729.)
Accordingly, “[a] juror who holds a preliminary view that a
party’s case is weak does not violate the court’s instructions [not
to form an opinion] so long as his or her mind remains open to a
fair consideration of the evidence, instructions, and shared
opinions expressed during deliberations.” (Allen and Johnson,
supra, 53 Cal.4th at p. 73.)
A trial court also is not required to discharge a juror who
expresses frustration with defense counsel. (People v. Kaurish
(1990) 52 Cal.3d 648, 694 [no hearing required when juror made

56
derogatory remark directed toward defense counsel, calling the
lawyer a “son-of-a-”]; People v. Zemek (2023) 93 Cal.App.5th 313,
337-338 [trial court was not required to discharge juror who
expressed frustration with length of defense counsel’s closing
argument in lamenting that the trial would never end because it
was defense counsel’s strategy].) Indeed, the California Supreme
Court has recognized that “the law makes room for a juror’s
humanity” during a stressful trial. (People v. Mora (2018) 5
Cal.5th 442, 485.)
Finally, a trial court is not required to discharge a juror
merely because the juror failed to adhere to an instruction,
especially where there has been no deliberate misconduct or
indication that disobedience would continue and thereby render
the juror unable to serve. (People v. Holloway (2004) 33 Cal.4th
96, 124-125 [substantial evidence supported trial court’s
determination that juror was able to serve impartially even
though the juror twice violated court instruction not to discuss
the case]; People v. Daniels (1991) 52 Cal.3d 815, 864 [finding no
abuse of discretion where trial court removed a juror who
committed “serious and willful misconduct” by repeatedly
violating court instructions not to discuss the case].) Accordingly,
discharge is not mandated simply because a juror had an
improper discussion about the case, especially if the discussion
was brief and did not cover anything of substance. (Holloway,
supra, 33 Cal.4th at pp. 124-125; see People v. Stewart (2004) 33
Cal.4th 425, 510 [recognizing that no prejudice occurs when a

57
juror’s improper discussion with a nonjuror does not involve
“anything of substance concerning the merits of the case”].)

C. Substantial evidence supported the trial court’s

finding that Juror No. 273 could be fair and
impartial
Here, substantial evidence supports the trial court’s finding
that Juror No. 273 could satisfy her duty of serving as a fair and
impartial juror. Although Juror No. 273 experienced some
anxiety and cried on one occasion, she did not believe that her
emotional state would prevent her from continuing to serve as a
juror. (7RT 1847; 23RT 6634-6636; 28RT 8287.) Under such
circumstances, the California Supreme Court has not mandated
the discharge of an emotional juror. (See, e.g., Lopez, supra, 5
Cal.5th at p. 365; Beeler, supra, 9 Cal.4th at p. 972.) As for her
evidence-based realization that appellant could be guilty, Juror
No. 273 assured the court that that she had not come to any
conclusion and that “it could still go either way” in her mind,
which remained “open.” Moreover, she assured the court that she
would come forward if she ever reached a decision about the case
because any such decision would render incapable of being fair.
(23RT 6655-6656.) Accordingly, this case resembles Allen and
Johnson in that it was far from clear that the challenged juror
had prejudged the case. (See Allen and Johnson, supra, 53
Cal.4th at p. 72.) As for Juror No. 273’s complaint about
“aggressive” questioning from defense counsel, the court was not
required to find that her opinion—which was neither bombastic
nor insulting—would prevent her from keeping an open mind,
especially since she recognized that it may have been the lawyer’s

58
job. (28RT 8289.) Her mild frustration with counsel’s
questioning pales in comparison to the juror in Kaurish who was
not required to have been discharged even though he called the
lawyer an obscene name. (Kaurish, supra, 52 Cal.3d at p. 694.)
Finally, to the extent Juror No. 273 told some people that she
was a juror on the case, her communication of the fact was not
tantamount to a receipt of outside information or a substantive
discussion of the merits. In any event, she explained that she did
so for a laudable reason—to avoid having anyone provide her
with information about the case. (37RT 10820.) Because the
court could find that Juror No. 273 did not intentionally engage
in any serious and repeated misconduct, it was not required to
discharge her. (See, e.g., Holloway, supra, 33 Cal.4th at pp. 124-
125.)
In short, the record supports a finding that Juror No. 273
was emotionally able to serve as a juror, that she had not
prejudged the case, that she could remain impartial, and that she
committed no misconduct. In declining to discharge the juror, the
court was entitled to rely on her representations. (7RT 1847 [“I’m
very unbiased”]; 23RT 6647-6656 [after crying, she said that she
was okay, that she had not made up her mind, and that she
would be able to base her decision on the evidence without any
bias]; 28RT 8290 [she said that she could be a fair and impartial
juror].)
For his part, appellant attempts to downplay the
significance of the juror’s self-assessment by arguing that a “trial
court must look beyond the juror’s own statement.” (AOB 48.) In

59
support of his contention, appellant cites a unique case in which a
trial court was found to have abused its discretion for “allow[ing]
a juror to remain on the panel after learning the juror was
personally acquainted with the victim herself to the depth and
degree made manifest by the existence of a teacher-student
relationship from which, even three years later, the teacher
continued to have positive memories and impressions.” (People v.
Romero (2017) 14 Cal.App.5th 774, 781-782 [finding “no case
matching this fact pattern in California jurisprudence” and
noting that the absence of a case was likely because “it would
have been axiomatic for the court to excuse and replace that
juror,” which would have precluded the issue from becoming a
claim on appeal].) The instant case is nothing like Romero, which
does not purport to preclude reviewing courts from generally
deferring to lower court assessments of juror representations
concerning their ability to remain impartial and decide the case
based solely on the evidence. Indeed, any such interpretation
would contravene California Supreme Court authority, which is
binding on this Court. (See, e.g., Mickel, supra, 2 Cal.5th at pp.
216-217 [deferring to trial court’s finding that a juror, who gave
ambiguous or conflicting responses, could be impartial]; People v.
Harris (2008) 43 Cal.4th 1269, 1304 [where juror stated that his
ability to be impartial would not be affected by threat he
received, the California Supreme Court stated that “[c]ourts may
properly rely on such statements to determine whether a juror
can maintain his or her impartiality after an incident raising a
suspicion of prejudice”]; see Auto Equity Sales, Inc. v. Superior

60
Court (1962) 57 Cal.2d 450, 455 [Supreme Court decisions are
binding on the Court of Appeal].) As such, appellant’s claim fails.

II. THE UNCHARGED RAPES WERE ADMISSIBLE UNDER

EVIDENCE CODE SECTION 1108 BECAUSE THE CHARGING
DOCUMENT ALLEGED THAT APPELLANT KILLED SMART
DURING THE COMMISSION OF A RAPE OR ATTEMPTED RAPE,
EACH OF WHICH CONSTITUTED A QUALIFYING SEXUAL
OFFENSE UNDER THE STATUTE

Appellant contends the trial court erred by admitting

evidence of uncharged rapes that he committed. Alleging that
Evidence Code section 1108 was inapplicable to his case,
appellant asserts that the prosecution failed to make a “threshold
showing” that he committed, or attempted to commit, a sexual
offense against Smart. Appellant asserts that such a preliminary
fact was necessary to admit evidence of the uncharged rapes.
(AOB 51-67.) Appellant asserts that the improper admission of
such evidence requires a reversal of his murder conviction or, in
the alternative, the felony-murder finding. (AOB 67-75.)
Appellant’s claim lacks merit because the charging
document alleged that appellant raped or attempted to rape
Smart during the commission of the murder. Because a
qualifying sexual crime was alleged, Evidence Code section 1108
necessarily applied. The statute does not require the prosecution
to make any threshold showing of evidence prior to application.
Nevertheless, any required showing was satisfied in this case.
Moreover, any error in admitting the evidence was harmless
because it is not reasonably probable that appellant would have
obtained a better result absent evidence of the two uncharged
rapes.

61
 A. Factual background
Before the preliminary hearing was held, the prosecutor
moved to amend the complaint to add two counts of rape by
means of drugging that appellant separately committed against
two females, neither of whom was Smart. (2CT 466-470, 533-
535.) But the motion was denied. Characterizing such evidence
as inflammatory, the judge stated that the rapes would not be
cross-admissible on the murder charge under Evidence Code
section 1108 because there was little or no proffered evidence
that appellant engaged in sexual conduct with Smart. (5CT
1324-1333.)
Following the appointment of a different judge to handle the
trial, the prosecutor filed a motion in limine that sought to
introduce sexual misconduct allegations from nine women,
including R.D. and S.D., under Evidence Code section 1108 as
well as Evidence Code section 1101, subdivision (b). (27CT 8001-
8032.) The prosecutor also sought to admit evidence found on
computers associated with appellant. Specifically, the prosecutor
sought to introduce videos of appellant having sexual intercourse
with women who appeared to be unconscious, including one in
which a woman had a red ball gag in her mouth. The prosecutor
also sought to introduce Google searches concerning the rape of
unconscious women. (27CT 8003-8004.)
The defense opposed the motion, arguing that uncharged sex
acts were not admissible because there was no evidence that
appellant committed a sex offense in the charged case. The
defense further asserted that the evidence was inadmissible
under Evidence Code section 352. (28CT 8193-8196, 8297-8299.)

62
 Although the trial court prohibited the prosecutor from
presenting most of the evidence, it allowed the prosecutor to
present evidence that appellant had drugged and raped R.D. as
well as S.D. Acknowledging that there was no direct evidence
that Smart had been sexually assaulted, the court found that
Evidence Code section 1108 nevertheless applied because such a
finding was supported by circumstantial evidence. (6Aug.RT
1597-1598.) 12 The court also found that the evidence was
admissible under Evidence Code section 1101, subdivision (b), to
show intent and to establish the existence of a common plan or
scheme. (6Aug.RT 1599.)
As for the video that showed a red ball gag, the trial court
declined to admit it. But the court allowed the prosecutor to
introduce a still photograph of the gag that was taken from the
video for purposes of establishing that appellant owned the type
of gag described by R.D. and S.D. (6Aug.RT 1600-1602; 32RT
9416-9426.)

B. Evidence Code section 1108 applies to every

criminal action in which a defendant is “accused”
of a sexual offense
Evidence Code section 1108, subdivision (a), states: “In a
criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if
the evidence is not inadmissible pursuant to Section 352.” Thus,

12 The court further ruled that the prosecution was allowed to

present evidence that appellant similarly raped a third woman, but no
evidence was ultimately presented as to that rape.

63
in any case in which a defendant has been accused of a sexual
offense, a prior sexual offense may be admitted to establish the
defendant’s propensity to commit a sexual offense. (People v.
Lewis (2009) 46 Cal.4th 1255, 1286.) The prior offense need not
have resulted in a conviction, and it only need be proven by a
preponderance of the evidence for the jury to conclude that the
defendant was disposed and inclined to commit the charged
sexual offense. (People v. Merriman (2014) 60 Cal.4th 1, 42.)
Moreover, a defendant has the “burden of rebutting the strong
presumption of admissibility of the sexual assault crimes
evidence under Evidence Code section 1108.” (Merriman, supra,
60 Cal.4th at p. 42.)
For Evidence Code section 1108 to apply, a defendant need
not be directly charged with a sexual offense. Rather, it also
applies to felony-murder cases where a sexual offense is
identified as the target crime. (People v. Story (2009) 45 Cal.4th
1282, 1294.) In fact, the California Supreme Court has
characterized the need for the evidence to be “especially
compelling when the sexual assault victim was killed and cannot
testify.” (People v. Avila (2014) 59 Cal.4th 496, 515.)
Under Evidence Code section 352, a trial court may exclude
relevant evidence if it finds the probative value is substantially
outweighed by concerns of undue prejudice, confusion or
consumption of time. (People v. Miles (2020) 9 Cal.5th 513, 587-
588.) Prejudice is not synonymous with damaging. Rather,
undue prejudice is shown only where the evidence is likely to
“inflame the emotions of the jury” and create a substantial

64
likelihood the jury will act out of emotion and improperly punish
or reward a party as a result. (People v. Doolin (2009) 45 Cal.4th
390, 439.)
On appeal, a trial court’s application of Evidence Code
section 352 or 1108 will not be overturned absent an abuse of
discretion. (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 824; Story, supra, 45 Cal.4th at p. 1295.) Thus, no
evidentiary error will be found unless the court exercised its
discretion in an arbitrary, capricious or patently absurd manner.
(People v. Chhoun (2021) 11 Cal.5th 1, 26.)

C. The trial court did not abuse its discretion by

admitting the uncharged sex crimes under
Evidence Code section 1108
Appellant was charged with murder committed during the
commission or attempted commission of a rape. (1CT 126-127)
Both rape and attempted rape constitute a sexual offense under
Evidence Code section 1108, subdivision (d)(1)(A). (People v.
Pierce (2002) 104 Cal.App.4th 893, 898.) Although Evidence Code
section 1108 does not require any level of similarity between the
charged and uncharged conduct, the probative value of the
uncharged rapes in this case was elevated because the evidence
supported an inference that appellant drugged and/or took
advantage of an unconscious or semiconscious woman in each
instance. Moreover, the potential for the uncharged crimes to
inflame the jury was somewhat lessened in this case where
appellant was charged with murder. Given the strong
presumption favoring the admissibility of such evidence under
Evidence Code section 1108 and the especially compelling need

65
for such evidence because Smart had been killed and was unable
to testify (see Avila, supra, 59 Cal.4th at p. 515), the court did not
exceed the bounds of reason in admitting evidence of the
uncharged rapes.
For his part, appellant does not assert or provide any
analysis attempting to establish that the trial court abused its
discretion in weighing the probative value versus the potential
prejudice under Evidence Code section 352. (See AOB 56-65.)
Accordingly, this Court need not address that issue. (See, e.g.,
People v. Britt (2002) 104 Cal.App.4th 500, 506 [“And since Britt
does not otherwise assert the trial court abused its discretion in
weighing the prejudice of the evidence against its probative
value, the claim must fail”].)
As his sole challenge to the evidence, appellant asserts that
Evidence Code section 1108 does not apply unless the prosecution
has satisfied some unspecified “threshold showing” of factual
support for the current charge or allegation of a sexual crime.
(AOB 51.) Citing a litany of decisions upholding the admission of
such evidence where the defendant was accused of felony murder
based upon a sex crime, appellant argues that those cases are
distinguishable because the prosecution’s theory in each case had
“actual support in the evidence.” (AOB 57-58.) Moving away
from cases that address Evidence Code section 1108, appellant
relies upon decisions establishing that, with respect to some
categories of evidence, the relevance of the evidence depends on
the existence of a preliminary fact. (See AOB 58-60.)

66
 Appellant’s challenge lacks merit. The language of Evidence
Code section 1108 is clear. It expressly applies to any criminal
action in which a defendant has been “accused” of a sexual
offense. Because the statutory language is not ambiguous, “the
plain meaning of the language governs.” (People v. Walker (2002)
29 Cal.4th 577, 581.) Moreover, it is telling that none of the
section 1108 cases cited by appellant contained any suggestion
that the prosecution was required to satisfy a “threshold
showing” beyond the existence of a qualifying accusation
contained in a charging document. (AOB 57-58.) Rather, the
California Supreme Court looked solely to the charging document
in deciding whether section 1108 applied. (See, e.g., Daveggio
and Michaud, supra, 4 Cal.5th at p. 824; Avila, supra, 59 Cal.4th
at p. 515; Story, supra, 45 Cal.4th at p. 1294.) For instance, Avila
succinctly explained:
Defendant was charged with a sexual offense both
because he was charged with committing lewd and
lascivious acts on a child under the age of 14 and
because he was charged with murder under the special
circumstance of murder while committing the lewd and
lascivious acts. [Citation] Accordingly evidence of
other sexual crimes, such as the evidence admitted in
this case, is admissible under Evidence Code section
1108.

(Avila, supra, 59 Cal.4th at p. 515.) Likewise, Daveggio and

Michaud stated:
Defendants do not dispute that section 1108
applies, and for good reason: This case is “a criminal
action.” (§ 1108, subd. (a) (section 1108(a)).) Both
defendants were “accused of a sexual offense.”
[Citations] And neither defendant contests that
evidence of the four incidents in question was “evidence

67
 of the defendant’s commission of another sexual offense
or offenses.” (§ 1108(a).)

(Daveggio and Michaud, supra, 4 Cal.5th at p. 824.) In short, the

applicability of Evidence Code section 1108 begins and ends with
the nature of the allegations contained in the charging document.
There is no unspoken requirement that the prosecution establish
a preliminary fact or otherwise satisfy some unspecified
“threshold showing” of evidence.
The charging document in this case alleged that “the murder
was committed while the defendant was engaged in the
commission of, or attempting to commit, the crime of Rape, in
violation of Penal Code section 261 within the meaning of Penal
Code section 189(a).” It further provided appellant notice of the
prosecution’s intent to admit evidence of prior sexual acts
pursuant to Evidence Code section 1108. (10CT 2867-2869.)
Because the charging document alleged that appellant committed
a qualifying sexual offense, Evidence Code section 1108
necessarily applied to this case.
But to the extent this Court disagrees and imposes—for the
first time—a requirement that the prosecution make some sort of
threshold showing, the amount of independent evidence required
should be slight, and the standard should be deemed satisfied in
this case. (See People v. Dalton (2019) 7 Cal.5th 166, 218 [only
“slight” independent evidence must be present to satisfy corpus
delicti rule].) Specifically, appellant had repeatedly displayed a
romantic interest in Smart even though she communicated a lack
of interest in him. (3RT 688-693, 697, 705-706; 4RT 950; 6RT
1664-1676; 7RT 1892-1893.) On the night Smart disappeared,

68
appellant showed a continuing romantic interest in her during a
party by asking two separate people about her availability. (4RT
1007-1014; 7RT 1907-1928; 8RT 2110-2112.) At the same party,
appellant made unwanted sexual advances on two other women,
Koed and Anderson. As to Koed, appellant kissed her without
consent, was rebuffed, and then attempted to kiss Koed a second
time after acknowledging that she did not want to be kissed by
him. (3RT 726-731; 4RT 1038-1039, 1049.) When Davis and
Anderson started to walk a barely conscious Smart home from
the party, appellant interjected himself into the group and
offered to help Smart even though he did not really know any of
them. (4RT 1043-1045; 10RT 2750-2758, 2763, 2770, 2799-2809,
2814.) Shortly after Davis left the group, appellant stopped
walking with Smart on two occasions. Each time, appellant
attempted to isolate Smart by encouraging Anderson to continue
without them. Appellant also used the pauses to rub Smart’s
arms and to give her a hug, which went unreciprocated. Before
Anderson left appellant alone with Smart, he asked Anderson for
a kiss or a hug. She refused the requests before securing a
promise from him to get Smart back to her dorm room safely.
But Smart was never seen again. (4RT 1045-1057, 1094.)
After Smart went missing, appellant denied having a
romantic interest in Smart, he denied kissing Koed, and he gave
conflicting responses as to how he had sustained a “black eye”
that was consistent with a physical struggle. (10RT 2879-2882,
2888; 13RT 3617-3636.) Finally, when a radio broadcast
mentioned Smart, appellant showed that the homicide was

69
sexually motivated by admitting to Hudson that he buried Smart
underground because she was a “dick tease.” (26RT 7558, 7563,
7575-7582.) In short, the record shows that there was
considerable evidence, aside from the uncharged rapes, that
appellant killed Smart during a rape or attempted rape.
Accordingly, Evidence Code section 1108 applied to appellant’s
case, and the trial court did not exceed the bounds of reason in
admitting evidence of the two uncharged rapes.
Because the evidence was admissible under section 1108,
this Court need not decide whether it also could have been
admitted under section 1101, subdivision (b) (see AOB 65-67).
(Britt, supra, 104 Cal.App.4th at p. 506 [“Since the trial court
correctly admitted the testimony concerning the uncharged
offenses under section 1108, we need not reach the question of its
admissibility under section 1101”].) But respondent notes that
the evidence was also admissible for purposes of establishing
appellant’s intent and to show that he acted pursuant to a
common scheme. (See People v. Balcom (1994) 7 Cal.4th 414, 423
[to establish common scheme or plan, the evidence must contain
“‘such a concurrence of common features that the various acts are
naturally to be explained as caused by a general plan of which
they are the individual manifestations’”]; People v. Ewoldt (1994)
7 Cal.4th 380, 402 [to admit evidence of another offense to
demonstrate intent, the uncharged offense need only be similar
enough “to support the inference that the defendant ‘probably
harbored the same intent in each instance’”].) No evidentiary
error occurred.

70
 D. Any error in admitting the testimony was
harmless
Any error in admitting evidence under Evidence Code
section 1108 is subject to the harmless error standard set forth in
People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Mullens
(2004) 119 Cal.App.4th 648, 658-659; People v. Harris (1998) 60
Cal.App.4th 727, 741; see People v. Falsetta (1999) 21 Cal.4th
903, 913-916 [Evidence Code section 1108 does not violate a
defendant’s due process rights].) Under that standard, appellant
must show that it is reasonably probable he would have obtained
a better result absent the alleged evidentiary error. (Watson,
supra, 46 Cal.2d 818, 836.)
Here, the prosecution presented compelling evidence of
appellant’s guilt without regard to the uncharged rapes. The
prosecution presented direct evidence of appellant’s guilt in the
form of his admission to Hudson that he buried Smart because
she was a “dick tease.” (26RT 7558, 7563, 7575-7582.) But the
prosecution also presented circumstantial evidence that was
powerful when considered in totality.
The circumstantial evidence of guilt included appellant’s
behavior before Smart disappeared. Appellant repeatedly
showed a romantic interest in Smart even though the interest
was not mutual, and he repeatedly displayed that interest the
night Smart went missing. (4RT 1007-1014; 7RT 1907-1928; 8RT
2110-2112.) After making unwanted sexual advances on two
other women, appellant again focused on Smart, who was heavily
inebriated. Appellant interjected himself into her group and
made several efforts to isolate Smart by encouraging Anderson to

71
continue walking without them. When Anderson left appellant
alone with Smart a short distance from Smart’s dorm, she
secured a promise from appellant to get Smart home safely. But
he never did. She was never seen again. (4RT 1045-1057, 1094.)
The circumstantial evidence also included appellant’s
appearance and conduct after Smart went missing. Appellant
admitted that he lied in giving conflicting explanations for a
“black eye” that he sustained around the time of Smart’s
disappearance. (10RT 2879-2882, 2888; 13RT 3617-3636.)
Additionally, appellant acted strangely when asked by other
people about Smart’s disappearance. (8RT 2245-2250 [when Tse
made a joke about appellant having done something with Smart,
appellant gave him a serious look and said that Smart was at his
house having lunch with his mother]; 14RT 4016-4019 [when
Hall asked appellant what he did with Smart, he lowered his
head and never spoke to her again].) Appellant also failed to
respond when his mother suggested that he listen to the podcasts
about Smart and see if some holes could be punched in the theory
(of appellant’s guilt) because only he would know. (21RT 6025-
6026; 35CT 10396 [transcript of telephone call that was recorded
surreptitiously].) Finally, in 2004, appellant did not allow his
girlfriend to go near the deck at his family home on White Court,
which had significance because other evidence showed that
Smart’s body was likely buried there at the time. (18RT 5228-
5233; 19RT 5413; 24RT 6907-6908.)
Additionally, about one month after Smart disappeared, no
less than four dogs—that had been certified and were reliable in

72
detecting human remains—indicated that someone had died on
appellant’s side of his dorm room. The dogs passed by many
other dorm rooms before providing the first (and only) alert on
appellant’s room. Upon entering appellant’s room, the dogs
alerted their handlers that someone had died on appellant’s side
of the room. (15RT 4284-4297; 15RT 4303-4305; 16RT 4588-
4593; 18RT 5131-5149.)
Moreover, in 2021, detectives found strong evidence that
Smart had previously been buried under the deck of appellant’s
family home on White Court. Two dogs, which had been certified
in finding human remains, searched the backyard and other
areas before providing an indication that some of the targeted
odor existed under the deck. (21RT 6072-6085; 22RT 6328-6343.)
At that point, ground penetrating radar showed that a hole had
previously been dug under the deck that was consistent with a
burial location because it was roughly six feet by four feet with a
depth of between three and four feet. (22RT 6367-6371, 6407.)
Although no bones were found when the area under the deck was
excavated, an archaeologist determined that there had been a
prior excavation of the area in which hand tools were used. 13
(23RT 6614-6619, 6626-6633, 6688.) Additionally, some of the
soil in the likely burial location had dark stains that were
consistent with human decomposition with fluids slowly leaking

13 The evidence supported an inference that the prior excavation

occurred a few days after detectives executed a search warrant at the
Flores house on White Court. (20RT 5812-5822 [search of house on
February 5, 2020], 5830-5834 [neighbor heard yelling and saw a cargo
trailer backed up next to Flores house on February 9, 2020].)

73
into the ground, and the stained soil tested positive for
hemoglobin, which is found in human blood. (23RT 6614-6619,
6626-6633; 30RT 8714-8715, 8727-8731.) Finally, some fibers
found during the excavation were consistent with the red and
black clothing that Smart had worn the night she disappeared.
(26RT 7516-7527.) In short, the evidence of appellant’s guilt was
compelling.
Arguing otherwise, appellant asserts the evidence should be
viewed as weak because many years passed before the charges
were filed against him. (AOB 68-70.) But no such inference can
be drawn from the failure to file charges earlier because it may
simply reflect a conservative and patient prosecutorial agency,
especially because an important piece of evidence—the burial plot
under the deck of the Flores home—was discovered just one
month before appellant was arrested and charged. (AOB 68-70.)
Similarly, this Court should reject appellant’s attempt to draw an
inference as to the strength of the evidence against him from a
different jury’s acquittal of his father on the charge of being an
accessory after the fact. (AOB 73.) The acquittal may have
resulted from the jury’s belief that there was insufficient evidence
that Ruben affirmatively aided appellant even if he knew that
appellant buried her under the deck. (See People v. Partee (2020)
8 Cal.5th 860, 867-869 [section 32 does not cover passive conduct;
it requires overt or affirmative assistance].) Alternatively, the
verdict may have resulted from an act of lenience in recognition
of a father’s understandable desire to protect his child. (See
People v. York (1992) 11 Cal.App.4th 1506, 1510 [“Inconsistent

74
findings by the jury frequently result from leniency, mercy or
confusion”].) Finally, this Court should reject appellant’s
assertion that the case should be deemed close—even though the
jury never reported itself to be deadlocked—simply because the
deliberations took five days following a trial that lasted two
months. (AOB 72-73; see People v. Houston (2005) 130
Cal.App.4th 279, 300 [deliberations over four days did not show
case was close but instead showed jury’s “conscientious
performance of its civic duty”]; People v. Walker (1995) 31
Cal.App.4th 432, 439 [six and a half-hour deliberation following
two and a half-hour presentation of the evidence did not indicate
that the evidence was closely balanced].) 14
Instead, any prejudice analysis should focus on the strength
of the evidence that was presented at trial. For the reasons set
forth above, without considering the uncharged sexual offenses,
the remaining evidence of appellant’s guilt was strong on both
the murder charge and on the allegation that appellant
committed the homicide during the commission or attempted
commission of a rape.
Contrary to appellant’s assertion (see AOB 69-70), the
significance of the admission he made to Hudson was not
undermined by the fact that he apparently provided her with an
incorrect location as to where he “buried” Smart. Likewise, the

14 The case upon which appellant relies for this proposition, In re

Martin (1987) 44 Cal.3d 1, 51, was specifically addressed by Walker.
Recognizing that Martin inferred a close case from unduly lengthy
deliberations, Walker found that it “would amount to sheer
speculation” to draw such an inference under the facts of its case.
(Walker, supra, 31 Cal.App.4th at p. 439.) The same holds true here.

75
existence of any “false alerts” (see AOB 69) did not undermine the
significance of the fact that no less than four dogs all passed by
numerous dorm rooms without providing an alert before doing so
at the door of appellant’s room. Finally, as none of the defense
experts testified about any instances in which HemDirect
provided false positives for hemoglobin, there is no support for
appellant’s assertion that they “cast doubt” on the results (see
AOB 73). This is especially true given the other evidence that
Smart previously had been buried there—with such evidence
including the size of the hole, the fibers found in the hole,
appellant’s attempt to keep his girlfriend away from the deck,
and appellant’s admission to having “buried” Smart. But even if
appellant could cast doubt on some aspect of the prosecution
evidence, the remaining evidence was nevertheless very strong
when viewed in totality. (See People v. Delgado (2013) 56 Cal.4th
480, 492 [Watson requires a reviewing court to examine entire
record in assessing prejudice].) Accordingly, appellant was not
prejudiced by any error in admitting the uncharged offenses.

III. APPELLANT FORFEITED HIS MERITLESS CLAIM THAT

BOELTER, WHO HAD PREVIOUSLY BEEN ROOFIED, SHOULD
HAVE BEEN PRECLUDED FROM OPINING THAT SMART ACTED
AS THOUGH SHE MAY HAVE BEEN ROOFIED

Appellant contends that the trial court erred by allowing

Boelter to opine that Smart acted as though she may have been
roofied. Appellant asserts that the prosecution failed to lay an
adequate foundation for Boelter’s testimony that Smart’s
behavior was similar to how he felt and acted when his friend
gave him a roofie. Appellant further asserts that the hearsay
rule was violated by Boelter’s testimony that he had read some

76
stories in a newspaper about girls being roofied or drunk. (AOB
75-80.)
Appellant, however, forfeited his claim by failing to object
when Boelter first opined that Smart may have been under the
influence of a drug. In any event, the trial court did not abuse its
discretion in admitting the challenged portions of Boelter’s
testimony. An adequate foundation was established for the lay
opinion because Boelter testified, without any objection, that he
had a personal experience of being roofied. Boelter’s general
reference to unspecified newspaper articles did not constitute
hearsay because no underlying statement from an article was
ever offered for the truth; rather, the evidence was admissible for
the nonhearsay purpose of explaining the impact of the articles
on Boelter’s thought process. Nevertheless, any improperly
admitted testimony was harmless under Watson.

A. Factual background
On direct examination, Boelter testified that Smart became
more inebriated towards the end of the party on Crandall. (8RT
2115.) With no objection from the defense, Boelter described
Smart’s condition as follows:
She was really like – like tripping on something. I
don’t know how to describe it. Like, she was – it didn’t
seem like drunk. It just seemed like, I don’t know,
druggie; like just kind of, like, out of it, really spacey. I
don’t know. Like she wasn’t standing straight. [¶] I
mean that’s the only way I can describe it. So you could
say that’s drunk or you could say it’s – she had drugs. I
mean, she just seemed not on her feet, not stable.

(8RT 2115-2116.)

77
 Under questioning from defense counsel, Boelter testified
that he had previously referred to Smart as “the drunk girl.”
(8RT 2138-2139.) Additionally, Boelter testified that, prior to
July of 2012, he had not said anything about the possibility that
Smart had been under the influence of drugs. Boelter explained
that he had assumed Smart was drunk. (8RT 2158.)
On redirect, Boelter was asked why he later considered the
possibility that Smart was under the influence of drugs. Boelter
replied,
You know, as the years went on and you think about the
case I remember in the newspaper, there was a school
newspaper, there was a number of stories about girls being
roofied or drunk.
(8RT 2161.) Although defense counsel objected on hearsay
grounds as to what was in the newspaper, the trial court
overruled the objection after noting that the witness had not
related anything specific. (8RT 2161.)
At that point, Boelter added, without any objection from the
defense, that he “had a personal experience being roofied at a
bar.” (8RT 2161-2162 [defense counsel withdrew initial
objection].) Boelter then described his personal experience:
I felt it was a wild feeling after I ingested that drink. I
felt really happy and I wanted to dance. I’m not a huge
dancer. I was really talkative and social. And then I
started to feel really bad and getting sick and then to
the point of passing out and my friends carrying me out
of this bar. [¶] So when I reflected on that I went,
whoa, that reminds me of that night and seeing Kristin
Smart. So that’s where that comes from, from that
personal experience.

78
(8RT 2162-2163.) Defense counsel objected under Evidence Code
section 352 and asserted that no foundation had been established
for the opinion. (8RT 2163.) The objections were overruled.
(8RT 2163.)
On recross, Boelter testified that he never saw any evidence
of drugs at the party. Boelter also testified that he never saw
Smart become unconscious or unable to speak that night. (8RT
2168.)
On redirect, Boelter was asked whether, based on his
experience, Smart’s behavior at the party was consistent with
having been roofied. But a defense objection was sustained, and
the question was never answered. (8RT 2169.)

B. Appellant forfeited his challenge to the admission

of Boelter’s opinion by failing to raise a timely
objection when Boelter first testified that Smart
may have been under the influence of a drug
To preserve a claim that a trial court erroneously admitted
evidence, a defendant must make a clear, specific, and timely
objection at trial. (Evid. Code, § 352; People v. Zapien (1993) 4
Cal.4th 929, 979.) An objection on one ground will not permit an
appeal on another ground. (See, e.g., People v. Alexander (2010)
49 Cal.4th 846, 912.) On the timeliness front, a defendant must
object when the objectionable material is first introduced. (See,
e.g., People v. Suff (2014) 58 Cal.4th 1013, 1075-1076 [defendant
forfeited objections to testimony by failing to raise them until
there was a subsequent break after the witness testified]; People
v. Demetrulias (2006) 39 Cal.4th 1, 22 [recognizing that an
objection must occur when the nature of a question indicates that
the evidence sought is inadmissible].)

79
 Here, appellant raised no objection whatsoever when Boelter
first opined that Smart appeared to be under the influence of a
drug rather than simply drunk. (8RT 2115-2116.) Although
defense counsel objected when Boelter later reiterated his opinion
that Smart may have been under the influence of a drug (see 8RT
2162-2163), that objection was too late because Boelter had
previously given his opinion without any objection from the
defense. (See, e.g., Suff, supra, 58 Cal.4th at pp. 1075-1076.)

C. The court did not abuse its discretion by allowing

Boelter to opine that Smart acted as if she had
been roofied
Evidence Code section 800 provides that a lay witness may
testify as to an opinion if it is rationally based on the perception
of the witness and helpful to a clear understanding of his
testimony. Lay opinion concerning drug or alcohol intoxication is
admissible as long as the party eliciting the evidence establishes
a foundation. (People v. Navarette (2003) 30 Cal.4th 458, 493;
People v. Leahy (1994) 8 Cal.4th 587, 620.) The requisite
foundation is established as long as the witness is sufficiently
knowledgeable about the substance to render an opinion as to
whether another person was under the influence of that
substance. (Navarette, supra, 30 Cal.4th at p. 494.) The
knowledge requirement may be satisfied from the observation of
others or from personal experience. (See, e.g., People v. Williams
(1988) 44 Cal.3d 883, 915-916 [witness, who had seen other
people “strung out” on drugs, opined that defendant did not
appear “strung out”]; see AOB 78 [acknowledging that a lay
witness who had “been ‘roofied’ could perhaps render an

80
admissible opinion on whether another person’s behavior
resembled his own”].) Ultimately, a trial court’s ruling on the
admissibility of lay opinion is reviewed for an abuse of discretion.
(People v. Virgil (2011) 51 Cal.4th 1210, 1254; People v. Bradley
(2012) 208 Cal.App.4th 64, 83.)
In challenging the foundation for Boelter’s opinion that
Smart had been roofied, appellant asserts that the evidence was
insufficient to establish that Boelter ever had an experience of
being roofied. Notwithstanding appellant’s concession that
Boelter “claimed” to have been roofied, appellant asserts that
such testimony was inadequate because Boelter “did not explain
how he knew that roofies had been placed in his drink.” (AOB
78.)
But appellant forfeited his challenge to the adequacy of the
foundation because he failed to object when Boelter first testified
that he “had a personal experience being roofied at a bar.” (8RT
2161-2162.) Appellant is precluded from asserting for the first
time on appeal that Boelter was never actually roofied. Thus, the
relevant question on appeal is whether Boelter, having been
roofied, had a sufficient foundation to opine that Smart exhibited
symptoms that were like the symptoms he exhibited while under
the influence of a roofie. Because a “yes” answer to that question
does not exceed the bounds of reason, appellant’s evidentiary
claim lacks merit.

81
 D. Boelter’s testimony concerning the school
newspaper did not violate the hearsay rule
because it was not offered to prove the truth
Hearsay has been defined as an out-of-court statement
offered for the truth of its content. Hearsay is generally
inadmissible unless it falls under an exception. (Evid. Code, §
1200, subd. (b); People v. Davis (2005) 36 Cal.4th 510, 535-536.)
An out-of-court statement offered for some purpose other
than the truth does not constitute hearsay. Such evidence is
admissible if “the nonhearsay purpose is relevant to an issue in
dispute.” (Davis, supra, 36 Cal.4th at p. 535.) “For example, an
out-of-court statement is admissible if offered solely to give
context to other admissible hearsay statements.” (Id. at p. 536.)
Likewise, an out-of-court statement is admissible if offered to
prove the impact the statement had on the person who heard it.
(See, e.g., People v. Bolden (1996) 44 Cal.App.4th 707, 715.)
Here, the prosecution did not offer evidence of any specific
newspaper article, nor did the prosecution attempt to establish
that any article had truthfully and accurately stated that any
particular female had been roofied. (See 8RT 2161.) Instead, the
prosecution merely offered Boelter’s rather generic testimony
that he read some newspaper articles on that topic, which caused
him to consider the possibility that Smart had been roofied.
Thus, the prosecution did not actually offer any out-of-court
statement. But even if Boelter provided sufficient information
about the articles to constitute an out-of-court statement, his
momentary reference to them was offered for the nonhearsay
purpose of explaining why he changed his mind and began to
consider the possibility that Smart’s intoxication could have been

82
caused by a drug rather than merely alcohol. As such, Boelter’s
reference to the articles did not constitute hearsay. (Bolden,
supra, 44 Cal.App.4th at p. 715.)

E. Any error in admitting Boelter’s testimony was

harmless
Any error in admitting opinion testimony under Evidence
Code section 800 or hearsay under Evidence Code section 1200 is
subject to the Watson standard, requiring the judgment be
affirmed unless it is reasonably probable that appellant would
have obtained a more favorable result absent the error. (People v.
Sanchez (2016) 63 Cal.4th 665, 698 [nontestimonial hearsay is
subject to the Watson standard]; People v. Shorts (2017) 9
Cal.App.5th 350, 362 [“Improper admission of lay opinion
evidence is a state law error subject to the Watson test”].)
Likewise, the erroneous admission of such evidence will not
violate a defendant’s federal constitutional right to due process,
which requires a showing that the error rendered the trial
fundamentally unfair. (People v. Gutierrez (2009) 45 Cal.4th 789,
813 [rejecting claim that erroneously admitted hearsay violated
due process]; see People v. Partida (2005) 37 Cal.4th 428, 439
[recognizing that erroneous admission of evidence under state
law does not violate due process unless it makes the trial
fundamentally unfair].)
Here, it is not reasonably probable that appellant would
have obtained a better result if the trial court had precluded
Boelter from opining that Smart may have consumed a roofie. As
no objection was raised on direct examination when Boelter first
testified to his belief that Smart may have been under the

83
influence of drugs rather than alcohol (8RT 2115-2116), any
subsequent testimony on the issue could not have been
prejudicial because it was superfluous. (See, e.g., People vs.
Nelson (2011) 51 Cal.4th 198, 214-215 [recognizing that the
improper admission of superfluous evidence was clearly
harmless].) In any event, Boelter’s testimony on the issue of
whether Smart was under the influence of alcohol and/or a roofie
was rather equivocal as he left the door open to both possibilities.
(8RT 2115-2116.) Moreover, the evidence of appellant’s guilt was
compelling whether Smart was heavily under the influence of
alcohol, a drug, or both. Contrary to appellant’s suggestion, a
jury did not need to find that appellant roofied Smart to find that
he murdered her during a rape or attempted rape. Accordingly,
any error was harmless under Watson.

IV. THE PROSECUTOR DID NOT ASK THE JURY TO DRAW ANY
IMPROPER INFERENCE FROM THE STILL PHOTOGRAPH OF
THE UNIDENTIFIED WOMAN WHO HAD HER EYES CLOSED
WITH A BALL GAG IN HER MOUTH, AND ANY PROSECUTORIAL
ERROR WAS HARMLESS

Appellant contends the prosecution closing argument asked

the jury to draw an improper inference from the still photograph
taken from a video that he took of an unidentified woman who
had her eyes closed with a ball gag in her mouth. Recognizing
the photograph was admitted for the limited purpose of showing
that he owned such a ball gag, appellant asserts that the
prosecutor improperly asked the jury to consider the photograph
for character purposes by arguing that the unidentified woman
was not having any “fun.” (AOB 83-87.)

84
 Appellant’s claim lacks merit. After defense counsel told the
jury that the prosecution case amounted to nothing more than a
“fun” conspiracy, the prosecutor was entitled to respond by
arguing that the people who became involved in the case did not
have any fun. In doing so, the prosecutor listed five of the
witnesses who testified at trial as well as the woman in the
photograph. The prosecutor’s brief comment, which did not ask
the jury to infer that appellant committed any sexual crime
against her, was a very reasonable inference to be drawn from
the photograph of a woman who had her eyes closed and was
likely unconscious. Accordingly, the court reasonably overruled a
defense objection to the argument. In any event, the comment
had little potential to prejudice a jury that heard testimony from
R.D. and S.D. as to how appellant roofied and raped them.

A. Factual background
R.D. and S.D. both testified that appellant made use of a red
ball gag in sexually assaulting them. (17RT 4823-4826; 24RT
6922-6925.) The trial court later allowed the prosecution to
introduce evidence that a computer found in the Flores home
contained a video of a woman with a red ball gag in her mouth.
(32RT 9415-9417; Peo. Exh. 458.) But when a still photograph
taken from the video was shown, the court instructed the jurors
that the image was being admitted only for the limited purpose of
establishing, if it did, that appellant possessed a red ball gag.
(32RT 9416-9417.)
At a recess after the photograph was shown, the trial court
noted that defense counsel had previously objected to it. Given

85
an opportunity to restate the objection, counsel tacitly conceded
that the photograph supported the uncharged offenses that were
admitted under Evidence Code section 1108. Counsel, however,
asserted that the photograph was unduly prejudicial under
Evidence Code section 352. (32RT 9420-9422.) In response, the
prosecutor noted that he had requested permission to show clips
of the video that showed appellant’s face, but the court limited
the evidence to a single photograph. The prosecutor further
argued that the probative value was very high because it
corroborated both witnesses. (32RT 9423.) After hearing the
argument of counsel, the court explained its reason for admitting
the photographic still rather than the video, which the court
characterized as too inflammatory. (32RT 9425-9426.)
After the parties rested, the trial court discussed its reason
for excluding the prosecution’s proffered videos that had been in
appellant’s possession. Stating that the videos were graphic
because they showed the genital area and faces of naked women,
the court found that Evidence Code section 1108 did not apply
because the women were never identified. According to the court,
it was impossible to ascertain whether the conduct was
consensual without locating the women and asking them. (37RT
10877-10878.)
Turning to the photo of the red ball gag that was admitted
into evidence, the trial court stated that detectives also had been
unable to identify her. Under the circumstances, the court
excluded the video of that woman, but it admitted the photograph
for the sole purpose of showing that appellant owned a red ball

86
gag. The court thereafter ordered that the videos and
photographs of the unidentified women be sealed to protect their
privacy interests. (37RT 10879-10884.)
In his opening argument to the jury, the prosecutor only
mentioned the photograph of the red ball gag once. In discussing
the evidence of the uncharged rapes of R.D. and S.D., the
prosecutor noted that the two women—who did not know each
other—described being assaulted in a similar fashion with the
use of a red ball gag. The prosecutor noted that their testimony
was “consistent with the red ball gag [photo] that was found on
his [appellant’s] computer.” (39RT 11495-11496.)
At the conclusion of the prosecutor’s summation, defense
counsel argued that the prosecutor had presented “basically a
bunch of conspiracy theories” that were not supported by facts.
Defense counsel stated that, while “conspiracy theories are fun,”
the job as a juror was “not to buy into a conspiracy theory” in
rendering a verdict. (39RT 11498-11499.)
The prosecutor’s closing argument challenged the defense
accusation that there was a grand conspiracy against appellant.
(41RT 12094-12095.) Responding to defense counsel’s claim that
conspiracy theories are fun, the prosecutor said:
And then Counsel said, [c]onspiracy theories are fun.
Okay, maybe you think it’s possible that everybody, the
dogs are in on it. Did it look like the woman with the
ball gag in her mouth was having fun in this conspiracy
theory?

(41RT 12095-12096.) At that point, defense counsel raised an

objection without specifying the grounds, and the trial court
overruled it while noting that the prosecutor was engaged in

87
argument. (41RT 12096.) The prosecutor continued by asking
whether other people involved in the case were part of a fun
conspiracy. Specifically, the prosecutor asked if it looked like
S.D., R.D., Fleming, Campos, Hudson, or any other witness had
fun testifying. The prosecutor then said that there was nothing
fun about the case. (41RT 12096.)
At a break after the prosecutor’s closing argument, defense
counsel asserted that the prosecutor’s argument misstated the
burden of proof and that it asked the jury to draw an improper
inference from the photograph of the ball gag. (41RT 12121-
12122.) But the court found there had been no misconduct.
(41RT 12128.)

B. The prosecutor did not commit misconduct or

otherwise err during closing argument by
asserting that the girl in the photo did not appear
to be having fun
A prosecutor’s misconduct violates the Fourteenth
Amendment if it infects the trial with such unfairness as to make
the conviction a denial of due process. (People v. Hoyt (2020) 8
Cal.5th 892, 943.) “A prosecutor’s misconduct that does not
render a trial fundamentally unfair nevertheless violates
California law if it involves the use of deceptive or reprehensive
methods to attempt to persuade either the court or the jury.”
(Ibid, internal quotation marks omitted.)
In challenging remarks made by a prosecutor in arguing the
case to the jury, the defendant is required to show that, in
context of the whole argument and instructions, there was a
reasonable likelihood the jury understood the remarks in an
improper or erroneous manner. (People v. Centeno (2014) 60

88
Cal.4th 659, 667.) A reviewing court does “‘not lightly infer’ that
the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” (Ibid.) Moreover, a
trial court’s ruling on a claim of prosecutorial misconduct is
reviewed for an abuse of discretion. (People v. Peoples (2016) 62
Cal.4th 718, 792-793.)
“If the challenged comments, viewed in context, ‘would have
been taken by a juror to state or imply nothing harmful, [then]
they obviously cannot be deemed objectionable.’” (People v. Cortez
(2016) 63 Cal.4th 101, 130, quoting People v. Benson (1990) 52
Cal.3d 754, 793.) A prosecutor “is allowed to make vigorous
arguments and may even use such epithets as are warranted by
the evidence, as long as these arguments are not inflammatory
and principally aimed at arousing the passion or prejudice of the
jury.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) A
prosecutor is also entitled to ask the jury to draw inferences from
the evidence that may not be particularly strong because the jury
is entitled to decide the reasonableness of such inferences.
(People v. Tafoya (2007) 42 Cal.4th 147, 181; People v. Thornton
(2007) 41 Cal.4th 391, 454.) But a prosecutor is precluded from
referring to matters outside the record. (People v. Cunningham
(2001) 25 Cal.4th 926, 1026.) Similarly, a prosecutor is precluded
from “urging use of evidence for a purpose other than the limited
purpose for which it was admitted.” (People v. Lang (1989) 49
Cal.3d 991, 1022.)
Here, the prosecutor’s brief reference to the ball gag did not
violate the Fourteenth Amendment or California law. After

89
defense counsel’s argument asserted that the prosecution case
consisted of “fun” conspiracy theories, the prosecutor responded
by explaining that there was no grand conspiracy among the
numerous prosecution witnesses who did not know each other
and did not have any “fun” being involved in the case. (41RT
12094-12095.) Tacitly conceding that there was nothing wrong
with such an argument, appellant asserts the prosecutor acted
improperly by noting that the woman in the photograph also did
not appear to be having any fun. (AOB 85.) But the prosecutor’s
brief comment asked the jury to draw a very reasonable inference
from the photograph. Additionally, in overruling defense
counsel’s objection, the trial court showed that the argument did
not run afoul of the court’s previous ruling concerning the limited
purpose of the photograph. (41RT 12096, 12128.) Moreover, the
prosecutor’s brief remark was made in response to defense
counsel’s argument. (See Cortez, supra, 63 Cal.4th at p. 133
[finding no misconduct where challenged statement was brief and
offered in response to defense counsel’s comments].) Under the
foregoing circumstances, where the prosecutor did not ask the
jury to draw an inference that was not plainly obvious from the
photograph itself, no error or misconduct occurred. 15

C. Any improper argument was harmless

To the extent the prosecutor’s brief comment on the
photograph constituted misconduct, it could not have rendered

15 Prosecutorial error is a more apt description of appellant’s

claim in that no culpable state of mind for the prosecutor is required.
(Centeno, supra, 60 Cal.4th at pp. 666-667.)

90
the trial fundamentally unfair. Accordingly, the Watson
standard of review applies. (People v. Wallace (2008) 44 Cal.4th
1032, 1071.)
Here it is not reasonably probable that appellant would not
have obtained a more favorable result if the prosecutor had not
included the woman depicted in the photograph in the list of
people who had no “fun” being involved in the case. This Court
should presume the jury abided by the trial court’s admonitions
that the argument of counsel did not constitute evidence (32CT
10405 [CALCRIM No. 222) and that evidence admitted for a
limited purpose could be considered only for that limited purpose
(32CT 10414 [CALCRIM No. 303]). People v. Seumanu (2015) 61
Cal.4th 1293, 1336.) Moreover, contrary to appellant’s suggestion
(AOB 85), the prosecutor’s recognition of something obvious in
the photograph in no way encouraged the jurors to convict
appellant because of some unknown crime done to the
unidentified woman. In any event, it would have made little
difference to the jury whether there was evidence that appellant
drugged and raped two or three women. Either way, the jury
could infer that appellant had a propensity to commit sexual
offenses. Given the nature of the alleged error and the strength
of the evidence presented at trial, appellant was not prejudiced
by the prosecutor’s comment on the photograph.

V. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDING OF

MURDER IN THE FIRST DEGREE

Appellant contends the evidence was insufficient to support

his first degree murder verdict under a felony-murder theory or
under a theory of premeditation. (AOB 88-90.) In raising the

91
claim, appellant acknowledges that the verdict must be upheld if
substantial evidence supports either theory. (AOB 88.)
Appellant’s challenge to the sufficiency of the evidence lacks
merit. The record contains substantial evidence to support the
felony-murder theory.
In evaluating a challenge to the sufficiency of the evidence, a
reviewing court reviews the entire record to determine whether
the verdict is supported by substantial evidence. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) Viewing the evidence in
the light most favorable to the prosecution, the court presumes
the existence of every fact a reasonable jury could deduce from
the evidence. (Ibid.) Moreover, a reviewing court must consider
all of the evidence that was presented at trial, including evidence
that was improperly admitted. (Story, supra, 45 Cal.4th at p.
1296 [in evaluating a challenge to the sufficiency of the evidence,
a reviewing court “must consider all of the evidence presented at
trial, including evidence that should not have been admitted”];
People v. Lara (2017) 9 Cal.App.5th 296, 328, fn. 17.) Thus, a
verdict may not be overturned merely because the circumstances
might also be reconciled with a contrary finding. (People v.
Solomon (2010) 49 Cal.4th 792, 811-812.) Under this standard,
“a defendant bears an enormous burden in claiming there is
insufficient evidence” to support a conviction. (People v. Veale
(2008) 160 Cal.App.4th 40, 46.)
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a).) First degree murder includes
unlawful killings committed during the perpetration of certain

92
specified felonies, including rape and attempted rape. (§ 189,
subd. (a).) First degree murder also includes any murder that is
willful, deliberate and premeditated. (Ibid.)
As appellant acknowledges (see AOB 88), “When a jury is
instructed on two theories of first degree murder, a first degree
murder verdict will be upheld [even] if there is insufficient
evidence as to one of the theories.” (People v. Sandoval (2015) 62
Cal.4th 394, 424.) Where the inadequacy of proof is purely
factual, the jury is presumed to be “fully equipped to detect” the
deficiency and must have relied on the other, factually valid
theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Here, the record contains substantial evidence to support
appellant’s first degree murder conviction based on a felony-
murder theory. The prosecution presented evidence that, on two
separate occasions, appellant isolated a woman from her friend or
friends, gave her a roofie, and then raped her when she was in a
semiconscious state. (17RT 4818-4826; 24RT 6920-6925.) From
this evidence, the jury could infer that appellant was disposed to
commit sexual offenses and that he was “likely to commit and did
commit rape or attempted rape as charged in the special
allegation.” (32CT 10440 [CALCRIM No. 1191A instructed the
jury that uncharged offenses must be considered with other
evidence because they are not sufficient by themselves to prove
felony-murder theory].) The prosecution also presented evidence
that appellant was romantically interested in Smart and that,
when she was semiconscious, he separated her from other people
who could intervene. (3RT 688-693, 705-706; 4RT 1045-1057;

93
6RT 1664-1676; 7RT 1907-1928; 8RT 2110-2112.) Accordingly,
appellant’s actions with Smart followed the same pattern as the
two uncharged rapes. 16 Moreover, in telling Hudson that he
buried Smart underground because she was a “dick tease,”
appellant showed that the killing had a sexual component. (26RT
7558, 7563, 7575-7582.) Under the foregoing circumstances, a
jury could infer that appellant killed Smart during the
commission of a rape or attempted rape. As such, this Court
need not determine whether the evidence was sufficient to
support the premeditation theory. The claim lacks merit.

VI. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY AS TO

THE MENTAL STATE REQUIRED FOR ATTEMPTED RAPE OF AN
INTOXICATED PERSON, AND IT PROPERLY INSTRUCTED THE
JURY ON ITS ABILITY TO CONSIDER EVIDENCE OF
APPELLANT’S INTOXICATION

Appellant contends the trial court misstated the mens rea

for attempted rape of an intoxicated person in two ways. First,
appellant asserts the instructions set forth in CALCRIM Nos. 460
and 1002 combined to permit the jury to find he committed an
attempted rape of an intoxicated person, even if he did not
personally know that Smart’s level of intoxication precluded her
consent, provided a reasonable person would have known as
much. Second, appellant asserts the pinpoint instruction on his
voluntary intoxication, set forth in CALCRIM No. 625,

16 Appellant posits that he could have had sex with Smart hours
after she walked home with him and that the “effects of the alcohol
could have dissipated” by that time. (AOB 89.) But the jury was
entitled to infer that, just as appellant did not wait for R.D. or S.D. to
regain their full consciousness, he did not wait for Smart to do so
either.

94
improperly precluded the jury from considering appellant’s
intoxication in evaluating his assessment of Smart’s condition.
(AOB 90-98.)
Appellant’s claims of instructional error lack merit and
cannot be raised for the first time on appeal. Given the entirety
of the instructions and the evidence of counsel, it is not
reasonably likely the jury would have interpreted the
standardized instruction on attempted crimes as appellant
proposes. Appellant’s failure to request any clarifying language
in the court below precludes his current challenge to the legally
correct instruction. Likewise, appellant is precluded from raising
his meritless claim that the standardized pinpoint instruction on
voluntary intoxication should have been modified to allow the
jury to consider such intoxication in assessing his knowledge.

A. Factual background
The trial court instructed the jury that felony murder
applies when a killing occurs during the commission of a rape or
an attempted rape. As to rape, the court instructed the jury with
CALCRIM No. 1000 on forcible rape, CALCRIM No. 1002 on rape
of an intoxicated person, and CALCRIM No. 1003 on rape of an
unconscious person. (35CT 10435-10438.) CALCRIM No. 1002
permitted a conviction for the rape of an intoxicated person if
“[t]he defendant knew or reasonably should have known that the
effect of an intoxicating, anesthetic, or controlled substance
prevented the woman from resisting.” (See 35CT 10437
[CALCRIM No. 1002].)

95
 For attempted rape, the court gave CALCRIM No. 460. It
required the prosecution to prove that “[t]he defendant took a
direct but ineffective step toward committing the rape” and that
“[t]he defendant intended to commit rape.” Additionally, the
standardized instruction stated, “To decide whether the
defendant intended to commit rape, please refer to the separate
instructions that I will give you on that crime.” (35CT 10439.)
The trial court also gave a pinpoint instruction concerning
the applicability of evidence that appellant was voluntarily
intoxicated. Under CALCRIM No. 625, the court instructed the
jury:
You may consider evidence, if any, of the defendant’s
voluntary intoxication only in a limited way. You may
consider that evidence only in deciding whether the
defendant acted with an intent to kill, the defendant
acted with deliberation and premeditation or the
defendant was unconscious when he acted. [¶] . . . [¶]
You may not consider evidence of the defendant’s
voluntary intoxication for any other purpose.

(35CT 10434.)

B. Appellant is precluded from raising his meritless

claim that the instructions allowed the jury to
find that he attempted to rape an intoxicated
person without finding that he attempted to have
intercourse with a person incapacitated by
intoxication
In evaluating a claim of instructional error, a reviewing
court determines whether there is a reasonable likelihood that
the jury understood the instructions in a manner that violated
defendant’s rights. (People v. Lewis (2009) 46 Cal.4th 1255,
1296.) The instructions are viewed as a whole in light of the

96
entire trial record, including the arguments counsel made to the
jury. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1312.)
Additionally, “[a] trial court has no sua sponte duty to revise
or improve upon an accurate statement of law without a request
from counsel [citation], and failure to request clarification of an
otherwise correct instruction forfeits the claim of error for
purposes of appeal.” (People v. Jackson (2016) 1 Cal.5th 269, 336;
People v. Simon (2016) 1 Cal.5th 98, 143.) Thus, a defendant is
precluded from arguing for the first time on appeal that a
generally accurate statement of law was potentially misleading.
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
An attempt to commit a crime requires a specific intent
without regard to whether the underlying crime required a
specific intent, a general intent, or no intent at all. (People v.
Fontenot (2019) 8 Cal.5th 57, 67-69; see People v. Bailey (2012) 54
Cal.4th 740, 747-750.) Accordingly, although the intent
requirement for rape of an intoxicated person is satisfied if the
accused “knew or reasonably should have known” that an
intoxicating substance prevented the woman from resisting, an
attempt to commit the crime requires that the defendant “must
not only intend to have intercourse, but to have intercourse with
a person incapacitated by intoxication.” (People v. Braslaw
(2015) 233 Cal.App.4th 1239, 1249.)
In section 21a, the Legislature codified the safeguard
concerning the intent requirement for all attempted crimes.
(Fontenot, supra, 8 Cal.5th at p. 68.) It provides, “An attempt to
commit a crime consists of two elements: a specific intent to

97
commit the crime, and a direct but ineffectual act done towards
its commission.”
CALCRIM No. 460 tracks section 21a in a nearly verbatim
manner. As given here, the instruction stated, “To prove that the
defendant is guilty of an attempt to commit rape, the People must
prove that: [¶] 1. The defendant took a direct but ineffective step
toward committing rape; [¶] AND [¶] 2. The defendant intended
to commit rape.” (35CT 10439.) As such, CALCRIM No. 460
properly instructed the jury that appellant could not be guilty of
attempted rape unless he had the specific intent to commit a
rape. Elsewhere, CALCRIM No. 460 admonished the jury that,
in deciding whether the defendant intended to commit rape, it
should refer to the separate instructions on that crime. By
referring to the other instructions on the crime of rape, it simply
allowed the jury to find appellant guilty if he intended to commit
any of the three types of rape alleged: by having non-consensual
sexual intercourse with a woman by means of force, violence,
duress, menace, or fear (CALCRIM No. 1000); by having sexual
intercourse with a woman who was prevented from resisting by
the effect of an intoxicating, anesthetic, or controlled substance
(CALCRIM No. 1002); or by having sexual intercourse with a
woman who was unable to resist because she was unconscious of
the nature of the act (CALCRIM No. 1003). The reference to the
instructions on rape did not somehow override or modify the
specific intent aspect of the two-element test that required
appellant to have “intended to commit rape,” which meant that
appellant intended to have intercourse with Smart without her

98
consent—whether by means of overcoming any resistance or by
taking advantage of her incapacity to resist that resulted from
either intoxication or unconsciousness.
The evidence and arguments of counsel further show that
the jury would understand that attempted rape of an intoxicated
person required a finding that appellant intended to have
intercourse with a person incapacitated by intoxication. Having
presented evidence that appellant roofied and raped two women
who were prevented from resisting by the intoxicating substance,
the prosecutor characterized appellant as a “serial drugger, who
enjoyed raping drugged women, [and] had Kristin Smart to
himself” just steps from his dorm the night she went missing.
(41RT 12098.) The prosecutor asserted that appellant certainly
knew that Smart was so intoxicated as to be unable to resist:
He knew perfectly well she was too incapacitated to
consent, which is why he inserted himself in that
situation. So when you combine the other rapes with
the facts of this case, the only conclusion is that he
intended to rape Kristin Smart, had a plan to do so, and
took one step towards putting that plan into action.

(39RT 11494.)
In short, viewing the record in its entirety, it is not
reasonably likely that the jury misunderstood the standardized
instructions set forth in CALCRIM Nos. 460 and 1002. As
appellant did not ask the trial court to provide any modifying or
clarifying language to these standardized instructions that
accurately set forth the law (38RT 11160 [defense counsel
recognized that CALCRIM No. 460 was “a straight CALCRIM”]),

99
he is precluded from raising the issue on appeal. (Jackson,
supra, 1 Cal.5th at p. 336.)
Under appellant’s reasoning, the incorporation language in
CALCRIM No. 460 would not just create error in this case, but in
every case for which the offense attempted requires a general
criminal intent or even no intent at all. It is telling that
appellant has not found a single case suggesting that CALCRIM
460 may mislead a jury under such circumstances. Appellant’s
reliance on People v. Dillon (2009) 174 Cal.App.4th 1367 is
misplaced because the reviewing court did not address CALCRIM
No. 460 and because it found that the instructional claim was not
properly raised on appeal since no request for modifying language
was proposed at trial. (Dillon, supra, 174 Cal.App.4th at p.
1380.) Accordingly, appellant’s claim of instructional error lacks
merit.

C. Appellant forfeited his meritless claim

concerning the scope of the pinpoint instruction
on his voluntary intoxication
“Evidence of voluntary intoxication is admissible solely on
the issue of whether or not the defendant actually formed a
required specific intent, or, when charged with murder, whether
the defendant premeditated, deliberated, or harbored express
malice aforethought.” (§ 29.4, subd. (b).) “[T]he plain language of
the statute does not permit the admission of voluntary
intoxication evidence on the issue of whether or not the defendant
met the knowledge requirement of a general intent crime.”
(People v. Suazo (2023) 95 Cal.App.5th 681, 702-703; People v.
Berg (2018) 23 Cal.App.5th 959, 969.)

100
 The standardized instruction on voluntary intoxication is set
forth in CALCRIM No. 625. Because it is a pinpoint instruction,
courts have no sua sponte duty to give it. (People v. Saille (1991)
54 Cal.3d 1103, 1120.)
Here, the trial court granted defense counsel’s request to
give CALCRIM No. 625, and it gave the instruction in the exact
format that appellant requested. (38RT 11155.) Appellant
cannot now complain on appeal that the court failed to give a
different pinpoint instruction that he never requested. (Saille,
supra, 54 Cal.3d at p. 1120.)
In any event, appellant’s claim fails on the merits because
section 29.4 does not allow the jury to consider evidence of a
defendant’s voluntary intoxication on the issue of knowledge.
(Suazo, supra, 95 Cal.App.5th at pp. 702-703.) But even if it
could be considered on the issue of knowledge, the court was not
required to so instruct because the record did not contain
substantial evidence that appellant’s intoxication had any effect
on his ability to perceive that Smart was too intoxicated to resist.
(See, e.g., People v. Williams (1997) 16 Cal.4th 635, 677-678
[“Assuming this scant evidence of defendant’s voluntary
intoxication would qualify as ‘substantial,’ there was no evidence
at all that voluntary intoxication had any effect on defendant’s
ability to formulate intent”]; see People v. Bolden (2002) 29
Cal.4th 515, 558 [recognizing that a trial court need not give a
pinpoint instruction that is not supported by substantial
evidence].) In short, the court did not err by giving the
instruction that the defense requested.

101
 D. Any instructional error was harmless
Any misstatement of an element of an offense is subject to
the harmless error standard set forth in Chapman v. California
(1967) 386 U.S. 18, which requires the judgment be reversed
unless the error was harmless beyond a reasonable doubt.
(People v. Lamas (2007) 42 Cal.4th 516, 526.) But the Watson
standard applies where there are ambiguous, conflicting, or
improperly omitted jury instructions. (People v. Chism (2014) 58
Cal.4th 1266, 1299; People v. Beltran (2013) 56 Cal.4th 935, 955.)
The Watson standard also applies to the failure to give a
requested pinpoint instruction on voluntary intoxication. (People
v. Pearson (2012) 53 Cal.4th 306, 325 [failure to give pinpoint on
voluntary intoxication subject to Watson standard] ; People v.
McGehee (2016) 246 Cal.App.4th 1190, 1206.)
As neither CALCRIM No. 460 nor No. 1002 misstated any
element, appellant’s first claim of instructional error is
tantamount to a claim that the instructions were ambiguous or
conflicting when considered together. Under such circumstances,
the Watson standard applies to the first claim as well as to the
second claim, which asserts the court failed to give a broad
enough pinpoint instruction. But any instructional error was
harmless even under Chapman.
Aside from appellant’s self-serving statements made to the
police, there was precious little evidence that appellant was even
intoxicated. Although Davis once told a detective that appellant
appeared to have been drunk, appellant could not have been too
intoxicated because he would have been unable to provide the
physical support that Smart required. In any event, there was

102
absolutely no evidence that appellant was so intoxicated that it
could have affected his ability to recognize that which was plain
to all—that Smart was too intoxicated to resist an unwanted
sexual assault. Moreover, given evidence that appellant roofied
and raped two other women, it is inconceivable that the jury
would have found that, because of his own intoxicated state, he
personally did not know that Smart was too intoxicated to resist
his attempt to have sexual intercourse with her. There simply
was no evidence that appellant personally believed that Smart
had the capacity to consent. Any instructional error was
harmless.

VII. THE CUMULATIVE ERROR ARGUMENT LACKS MERIT

Appellant contends the cumulative effect of some of the
errors alleged in his opening brief deprived him of his state and
federal constitutional rights to due process and a fair trial. (AOB
99-100.) The cumulative error argument lacks merit.
As set forth above, each alleged error lacked merit and was
harmless. To the extent that appellant has demonstrated more
than one type of error in this case, their cumulative effect did not
infringe on any of his state or federal constitutional, statutory, or
other legal rights. (See, e.g., People v. Hines (1997) 15 Cal.4th
997, 1075 [“whether considered separately or in combination, the
few errors that occurred during defendant's trial, as discussed
earlier, were inconsequential”]; People v. Wrest (1992) 3 Cal.4th
1088, 1111.) Appellant was entitled to a fair trial, not a perfect
one. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; People v.
Mincey (1992) 2 Cal.4th 408, 454.) Appellant received a fair trial.

103
 CONCLUSION
For the foregoing reasons, respondent respectfully submits
the judgment should be affirmed.

Respectfully submitted,

ROB BONTA
Attorney General of California
LANCE E. WINTERS
Chief Assistant Attorney General
SUSAN SULLIVAN PITHEY
Senior Assistant Attorney General
ZEE RODRIGUEZ
Supervising Deputy Attorney
General

/s/ Michael C. Keller

MICHAEL C. KELLER
Deputy Attorney General
Attorneys for Plaintiff and Respondent
April 14, 2025

104
 CERTIFICATE OF COMPLIANCE

I certify that the attached RESPONDENT’S BRIEF uses a

13 point Century Schoolbook font and contains 22,870 words.

ROB BONTA
Attorney General of California

/s/ Michael C. Keller

MICHAEL C. KELLER
Deputy Attorney General
Attorneys for Plaintiff and Respondent
April 14, 2025

LA2024600309
67573111

105
 DECLARATION OF ELECTRONIC SERVICE
AND SERVICE BY U.S. MAIL

Case Name: People v. Paul Ruben Flores No.: B329873

I declare:

I am employed in the Office of the Attorney General, which is the office of a

member of the California State Bar, at which member's direction this service
is made. I am 18 years of age or older and not a party to this matter. I am
familiar with the business practice at the Office of the Attorney General for
collecting and processing electronic and physical correspondence. In
accordance with that practice, correspondence placed in the internal mail
collection system at the Office of the Attorney General is deposited with the
United States Postal Service with postage thereon fully prepaid that same
day in the ordinary course of business. Correspondence that is submitted
electronically is transmitted using the TrueFiling electronic filing system.
Participants who are registered with TrueFiling will be served electronically.
Participants in this case who are not registered with TrueFiling will receive
hard copies of said correspondence through the mail via the United States
Postal Service or a commercial carrier.

On April 14, 2025, I electronically served the attached RESPONDENT'S

BRIEF by transmitting a true copy via this Court’s TrueFiling system:

Solomon R. Wollack CAP – LA

Counsel for Appellant [email protected]
(Service Via TrueFiling) (Service Via TrueFiling)

Sixth District Appellate Program

(Service Via TrueFiling)

On April 14, 2025, I served the attached RESPONDENT'S BRIEF by

transmitting a true copy via electronic mail to:

Christopher Peuvrelle
Deputy District Attorney
(Courtesy Copy Via Email)
Because one or more of the participants in this case have not registered with
the Court’s TrueFiling system or are unable to receive electronic
correspondence, on April 14, 2025, I placed a true copy thereof enclosed in a
sealed envelope in the internal mail collection system at the Office of the
Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA
90013-1230, addressed as follows:

The Honorable Jennifer O'Keefe

Monterey County Superior Court
Salinas Courthouse
240 Church St.
Department 4, 2nd Floor
Salinas, CA 93901

I declare under penalty of perjury under the laws of the State of California
and the United States of America the foregoing is true and correct and that
this declaration was executed on April 14, 2025, at Los Angeles, California.

J. Wu /s/ J. Wu
Declarant Signature

LA2024600309
67575267